Manoj Kumar Mishra vs The State Of U.P. And Others
2011 Latest Caselaw 6381 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- WRIT - A No. - 62455 of 2011
 

 
Petitioner :- Manoj Kumar Mishra
 
Respondent :- The State Of U.P. And Others
 
Petitioner Counsel :- Arvind Kumar Singh Ii,Ashok Khare
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Arun Tandon,J.

Petitioner before this Court seeks quashing of the order of the District Inspector of Schools, Varanasi dated 14th October, 2011 wherein it has been directed that salary bills of other teachers except the petitioner and other two teachers be submitted and the salary bills earlier sent by the Committee of Management including the petitioner and other two teachers are returned. Petitioner also seeks a writ of mandamus for payment of salary.

Facts in short as borne out from the records of the present writ petition are as follows:

Petitioner claims to have been appointed on ad hoc basis by the Committee of Management of the institution, namely, Subhadra Kumar Intermediate College, Basani District Varanasi as Lecturer (English) on 11th July, 1996. The said institution is a recognised and aided intermediate college under the provisions of U.P. Intermediate Education Act, 1921. Despite appointment, petitioner was not paid his salary. The petitioner filed Original Suit No. 1219 of 1997 seeking an injunction against the State, Committee of Management and the District Inspector of Schools from interfering in the working of the petitioner as teacher in Subhadra Kumar Inter College, Basani, District Varanasi as well as for payment of salary. In the said suit a temporary injunction was granted on 21st January, 1998 restraining the defendants from interfering in the working of the petitioner/plaintiff and payment of salary to the plaintiff concerned. Petitioner for enforcing the temporary injunction filed contempt case no. 5 of 2002 wherein order dated 21st January, 2003 was passed.

The State was not satisfied. Therefore, it filed First Appeal From Orders (FAFO). The FAFO was dismissed on the ground that it was barred by limitation after rejection of the application filed under Section 5 of the Limitation Act. The State approached the High Court by means of Civil Misc. Writ Petition No. 19434 of 2001. The High Court vide judgment and order dated 02.11.2006 held that the temporary injunction by the Trial Court without adjudicating the issue of maintainability of the suit itself was illegal. Further that once a selected candidate has been recommended for appointment on the post which was requisitioned and advertised, ad hoc appointee like petitioner must give way. Accordingly, the order granting the injunction was quashed. The Trial Court was directed to decide the suit in light of the objections raised on behalf of the State. This order has admittedly became final between the parties.

The issue of payment of salary to the petitioner, therefore, stood closed till the disposal of the suit with the order of the High Court referred to above dated 02.11.2006.

As is the practice in the State of U.P., specially in the education department action, in accordance with law was not taken by the District Inspector of Schools by stopping the salary of the plaintiff/petitioner. The Committee of Management, petitioner and the office of the District Inspector of Schools colluded among themselves in ensuring salary to the petitioner despite order of the High Court dated 02.11.2006. For the purposes of perpetuating such illegality, writ petition no. 19434 of 2001, no. 42374 of 2006, no. 47136 of 2009, no. 16417 of 2011, no. 48256 of 2011, and no. 8134 of 2011 were filed before this Court raising a dispute of inter se seniority, by persons like the petitioner, some of whom were also plaintiffs in the said suit. In garb of dispute of inter se seniority being adjudicated, petitioner has not only been permitted to continue in the institution but has also drawn salary from the State exchequer clearly in defiance to the order passed by this Court dated 02.11.2006, referred to above.

Orders passed by this Court pertaining to inter se dispute or by the District Inspector of Schools or higher authority are wholly irrelevant and out of context so far as the right of the petitioner to continue and to be paid salary after passing of the order dated 02.11.2006 is concerned.

It is not disputed that the civil suit filed by the plaintiff/petitioner has not been decided till date.

This Court while entertaining the preent writ petition on 24th November, 2011 found that between the petitioner, Committee of Management of the institution and the District Inspector of Schools, a situation has been manufactured whereby even after the order of the Writ Court dated 2nd November, 2006 passed in Civil Misc. Writ Petition No. 19434 of 2001, petitioner has succeeded in drawing salary from the State exchequer.

This Court vide order dated 24th November, 2011 issued notices to the petitioner, the Committee of Management and the District Inspector of Schools to explain as to why salary drawn by the petitioner subsequent to the order of the Writ Court dated 2nd November, 2006 be not recovered and further an enquiry against the Committee of Management and District Inspector of Schools may not be directed. This Court further opined that in the facts disclosed, an offence is made out for which, first information may be directed to be lodged.

In response to the notice so issued, affidavits have been filed by the petitioner, Committee of Management and the District Inspector of Schools today. An impleadment application has also been filed on behalf of one Sri Jai Kumar Singh, who claims to be Ex-Secretary of the society, which runs the institution and Sri Jagdish Prasad Singh, who claims to be Lecturer in the institution.

It is admitted on record that appointment on ad hoc basis has been offered by the Committee of Management against a substantive vacancy to the petitioner on 11th July, 1996. On the relevant date the Committee of Management had no jurisdiction to offer any ad hoc appointment against a substantive vacancy. Even otherwise appointment is contrary to law laid down by the Full Bench of this Court in the case of Kumari Radha Raizada and Ors. vs. Committee of Management, Vidyawati Darbari Girls Inter College & Ors., 1994 A.L.J. 1077.

Filing of the civil suit, grant of injunction for payment of salary and the setting aside of the injunction order under the judgement of the Writ Court dated 2nd November, 2011 referred to above are not in dispute.

Order passed by the Writ Court dated 2nd November, 2006, insofar as it is relevant for the purposes of this order, reads as follows:

"In view of the aforesaid stand taken by the counsel for the respondent, this Court is of the opinion that the injunction granted by the trial court, without adjudicating upon the maintainability of the suit itself, at the first instance is legally to justified. Even otherwise once a selected candidate has been recommended for appointment on the post against a vacancy which has been requisitioned and advertised, ad hoc appointees like the plaintiff must give away.

In the totality of the circumstances as stated above, the writ petition filed by the State, being Writ Petition No. 19434 of 2011 is allowed. The injunction granted by the trial court as well as order passed in the appeal by the District Judge are hereby quashed. The trial court may proceeded to decide the suit itself including the issue qua the maintainability of the suit in light of the objections raised on behalf of the State at the earliest possible, preferably within six months from the date a certified copy of this order is filed before the trial court."

Question of payment of salary subsequent to he passing of the order of the Writ Court dated 2nd November, 2006 therefore, did not survive. Petitioner, Committee of Management and the District Inspector of Schools including the State of Uttar Pradesh being party to the said writ proceedings were fully aware of the order passed by the Writ Court and yet payment of salary continued unabated for full nearly 6 years.

In response to the noticed issued, in the explanation furnished by the petitioner, reference has been made to the order which was passed by the State government dated 30th January, 2003, which in turn is referred to in the order of the Regional Joint Director of Education, Varanasi Region, Varanasi dated 17th July, 2006 enclosed as Annexure-1 to he affidavit of the petitioner filed today. This order specifically refers to the injunction, which had been granted by the trial court on 21st January, 1998 and records that the payment of salary be made in compliance thereof. The State Government could not have directed otherwise on that date i.e. 30th January, 2003, inasmuch as the injunction was operative and had been quashed by the Writ Court only under an order dated 2nd November, 2006. It is for this reason that the Regional Joint Director of Education has also not made any reference to the order of the Writ Court dated 2nd November, 2006 in his letter dated 17th July, 2006, as it had been issued at an earlier point of time.

Reference has then be made to the order passed by the Writ Court in Civil Misc. Writ Petition No. 47136 of 2009 filed by one Niraj Kumar raising a dispute of inter se seniority.

It may be recorded that in the said writ petition, there was no mention of the suit filed by the present petitioner, i.e. Manoj Kumar Mishra, of the ex parte injunction granted in his favour and the judgement and order of the Writ Court dated 2nd November, 2006, whereby the injunction order granted by the trial court was quashed with a direction that the suit itself may be finally decided. Order passed in Writ Petition No. 47136 of 2009, in absence of aforesaid facts being disclosed, therefore, does not help the case of the petitioner in any manner. Similarly reference has been made to another writ petition filed by the Committee of Management being Civil Misc. Writ Petition No. 16417 of 2011 and the order passed therein dated 13th April, 2011. In the writ petition field by the Committee of Management there is absolutely no mention of the suit filed by the present petitioner, the injunction order granted by the trial court in his favour and the order of the Writ Court dated 2nd November, 2006 passed in Civil Misc. Writ Petition No. 19434 of 2001, whereby the injunction order was quashed and the suit itself was directed to be decided. The order dated 13th April, 2011 has, therefore, been obtained by concealing material facts and even otherwise, would not reflect upon the right of the petitioner to claim salary in teeth of the order of the Writ Court dated 2nd November, 2006 quashing the injunction order.

Thus, the explanation furnished by the petitioner is, on the face, flimsy.

So far as the Committee of Management of the institution is concerned, it is explained, to the Court that the appointment of Ram Prakash by the U.P. Secondary Education Services Selection Board, Allahabad was on a different post vis-a-vis the post against which ad hoc appointment was offered to the petitioner, vacancy whereof arose due to retirement of Chandrama Singh. There is absolutely no explanation as how ad hoc appointment could be made by the Committee of Management against a substantive vacancy on the relevant date i.e. 11th July, 1996 and further there is no explanation with regard to the violation of the law laid down by the Full Bench of this Court in the case of Kumari Radha Raizada (supra). There is little or no explanation as to how salary bill could be submitted by the Committee of Management and payment of salary could be released on that basis once injunction order granted by the trial court was qashed by the Writ Court vide judgment dated 2nd November, 2006.

Initially Sri Umesh Narain Sharma, learned Senior Advocate assisted by Sri Chandan Sharma, Advocate on behalf of the Committee of Management contended that since the salary was being paid even prior to the grant of injunction, the order of the Writ Court quashing the injunction order dated 2nd November, 2006 will not reflect upon the payment of salary to the petitioner.

The contention so raised is factually incorrect. As already recorded above, salary was released in favour of the petitioner only because of injunction order granted by the trial court and the contempt case no. 5 of 2002 filed for enforcing the injunction, which fact is further established from the letter of the Regional Joint Director of Education brought on record by the petitioner himself as Annexure-1 to the affidavit filed today, wherein reference has been made to the order of the State Government dated 30th January, 2003 directing that the payment of salary be made in terms of the injunction granted by the trial court on 21st January, 1998. Therefore, the explanation furnished by the Committee of Management has no substance.

So far as the District Inspector of Schools is concerned, it has been explained in paragraph-5 of the affidavit filed today that the petitioner could not be appointed on ad hoc basis by the Committee of Management against a substantive vacancy on 11th July, 1996 as it did not have the competence to make any such ad hoc appointment on that date. Even otherwise, appointment is contrary to law. It has been further stated that in terms of the interim order passed in Civil Misc. Writ Petition No. 19434 of 2001, the representation made by the petitioner was rejected vide order dated 31st November, 2001, this order has not been subjected to challenge any further. What has been further stated is that the payment of salary was released in favour of the petitioner only because of order of the State Government dated 30th January, 2003 in view of the injunction granted by the trial court in the suit and the contempt petition filed for enforcing the same being contempt petition no. 05 of 2002 wherein an order was issued on 21st January, 2003. However, thereafter it has been stated that order of the Writ Court dated 2nd November, 2006 passed in Civil Misc. Writ Petition No. 19434 of 2001 has not been made available to the office of the District Inspector of Schools and therefore, appropriate action could not be taken. For the purpose, reference be had to the compliance affidavit filed by the District Inspector of Schools, wherein various reports obtained from the Section Officers concerned have been enclosed.

On behalf of the persons seeking impleadment, copy of the order passed by the Writ Court dated 2nd November, 2006 in Civil Misc. Writ Petition No. 42374 of 2006 has also been produced before this Court wherein an interim order has been passed for payment of salary in favour of Ram Prakash, petitioner in the said writ petition, after recording a finding that Manoj Kumar Mishra, respondent no.6 to the said writ petition can have no right to object to the appointment nor the Committee of Management has any such right in view of decision of the Writ Petition no. 19434 of 2001, wherein injunction has been quashed. Learned counsel for the applicants points out that this order was specifically filed before the District Inspector of Schools, yet payment of salary in favour of the present petitioner has continued illegally for more than 5 years.

On the facts on record it is beyond comprehension of any reasonable man that the State and its officers were unaware of the order passed by the High Court on the petition filed by the State itself dated 2nd November, 2006 for last nearly 6 years. The explanation of the District Inspector of Schools is, therefore, an eye wash.

This Court has no hesitation to record that the petitioner, Committee of Management through its Manger at the relevant time and the District Inspector of Schools have manipulated among themselves a situation for payment of salary to the present petition from State exchequer, despite quashing of the injunction order granted by the trial court. The facts on record, do disclose fraudulent payment from the public exchequer, which in turn continue a criminal offence.

This Court, therefore, directs that a first information report shall be lodged for bring the guilty to book. The Regional Joint Director of Education shall lodge a first information report within one week from today disclosing the aforesaid facts, which constitute a criminal offence. Copy of the first information report shall be brought on record before this Court by the next date.

List this matter for further hearing on 10th January, 2012.

(Arun Tandon, J.)

Order Date :- 8.12.2011

Sushil/-

Case :- WRIT - A No. - 62455 of 2011

Petitioner :- Manoj Kumar Mishra

Respondent :- The State Of U.P. And Others

Petitioner Counsel :- Arvind Kumar Singh Ii, Ashok Khare

Respondent Counsel :- C.S.C.

Hon'ble Arun Tandon,J.

For order see order of date passed on the separate sheets.

(Arun Tandon, J.)

Order Date :- 8.12.2011

Sushil/-