Vinod Kumar Upadhyay vs State Of U.P. And Others
2011 Latest Caselaw 2825 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No.10
 
Civil Misc. Writ Petition No.29888 of 2011
 
Vinod Kumar Upadhyaya 
 
v.
 
State of U.P. and others.
 
...

Hon'ble Arun Tandon, J

This petition is a classic example as to how the orders of the High Court are mis-interpreted and mis-utilized by the education authorities of the State of Uttar Pradesh for the purposes of violating the law with impurity and for conferring illegal monetary benefits on the chosen one. This Court is of the opinion that a stage has been reached where not only orders are to be issued for recovery of the loss which has been caused to the State Government because of such illegal acts of the education authorities in collusion of the management and the teacher concerned a First Information Report be also directed be lodged for preparing documents so as to defraud the exchequer.

Photo copies of the order of the Deputy Director of Education dated 24.7.97 and that of D.I.O.S. dated 8.6.09 have been handed over to the Court by the counsel for the petitioner which are accepted on record.

Relevant facts as exist on the records are as follows.

Sri Gandhi Vidyalaya Inter College is an institution aided and recognized under the provisions of the U.P. Intermediate Education Act, 1921(hereinafter referred to as an Act,1921). The provisions of the U.P. Secondary Education Services Selection Board Act,1982 (hereinafter referred to as Act 1982) and the rules and regulations framed thereunder are fully applicable to the teachers of the said institution.

One Shyam Bahadur who was working as Lecturer, Logic in the institution retired from service after attaining his age of superannuation. A substantive vacancy in Lecturer Grade was caused. One Janardan Upadhyay who was working as L.T.Grade Teacher was promoted as Lecturer, Logic which appointment was approved under the letter of the DIOS dated 26.6.1993 w.e.f. 1.11.1991. This gave rise to a short term vacancy in L.T. Grade. Against the vacancy so caused in L.T.Grade which was short term in nature one Raj Nath Ram who was working as Assistant Teacher C.T., Grade is stated to have been promoted on ad hoc basis as L.T.Grade teacher . This appointment was approved under the same order dated 26.6.93 w.e.f. 1.7.1993. In the resultant short term vacancy caused in C.T. Grade the petitioner is stated to be appointed by direct recruitment as Ad-hoc Assistant Teacher in C.T. Grade. The appointment of the petitioner was approved vide same order dated 26.6.93 w.e.f.1.7.1993.The petitioner is stated to have joined and to have worked in the institution since then.

What is further interesting to note is that Raj Nath Ram himself was an Ad hoc teacher in C.T.Grade yet he is said to have been promoted in L.T.Grade on Ad-hoc basis against the vacancy caused due to promotion of Janardhan Upadhyay. Such appointment was made by the Authorized Controller as is apparent from Annexure-CA-2 to the affidavit filed by the Regional Joint Director of Education. The order of appointment categorically records that the appointment of Raj Nath Ram was Ad-hoc and is only for the period till a regularly selected candidate joins. The Ad-hoc appointment of Raj Nath Ram in C.T. Grade is alleged to have been joined on 1.8.1988 with the approval of the DIOS dated 30.7.1988. Ad-hoc appointment of Raj Nath Ram is stated to be regularized in C.T.Grade under order of D.I.O.S. dated 11.2.93 and he was treated as on probation in C.T. Grade w.e.f. 6.4.1991. This order is enclosed as Annexure CA-3 of the affidavit of Regional Joint Director. The regularization been made against which vacancy is not disclosed. Nor the Statutory Provision where under such regularization was directed could not be informed to the Court.

This Court finds that under a letter which bears no number or date the D.I.O.S. promoted Raj Nath Ram as Ad-hoc L.T.Grade teacher against the vacancy said to caused due to promotion of Janardan Upadhyaya . The date mentioned under the signature of D.I.O.S. is 17.6.1993 . Copy of the letter is enclosed as Annexure-CA-4 to the affidavit of Regional Joint Director of Education.

A specific query was put to the counsel for the petitioner as well as to the Standing Counsel to explain as to under which statutory provisions an ad hoc C.T. Grade teacher can be promoted in L.T. Grade on Ad-hoc basis, none could respond to the query. Both in fact admitted that there is no such provision of or Ad hoc teacher in C.T. Grade to be further promoted as Ad hoc L.T. Grade teacher. It may be recorded that C.T. Grade was declared a dying cadre under Government order dated 4.12.1990 . Therefore as an when the vacancy in C.T. Grade became substantively vacant it would become dead. A new post in L.T. Grade shall stand existed.

It is, writ, large on the record that the regularization of Raj Nath Ram as C.T. Grade Teacher under letter dated 11.02.1993 and his subsequent Ad-hoc promotion in L.T. Grade under said letter as depicted by the education officers in the facts of the case is a farce. The position becomes worst in view of the fact that at the relevant point of time Authorized Controller was working in the institution who was non other than the DIOS himself. The person making the illegal appointment was the person approving the same for the purpose of payment of salary.

Effort of the authority concerned to perpetuate illegal appointments did not stop after suggesting promotion of Raj Nath Ram as Ad-hoc L.T.Grade teacher he proceeded to appoint the petitioner by direct recruitment on Ad-hoc basis in C.T.Grade, when he was not B.Ed. and had to his credit the certificate of 'Shiksha Alankar from Rashtriya Patrachar Sansthan', Kanpur only.

In order to keep the record straight it may be noticed that the appointment of the petitioner on ad hoc basis was subject matter of consideration in proceedings under section 16-E (1) of the Intermediate Education Act, 1921. The Assistant Director of Education, Allahabad vide letter dated 8.8.1996 informed the D.I.O.S. that the degree of 'Shiksha Alankar' was not recognized. This order was conveyed by means of Writ Petition No. 30953 of 1996. The appointment of the petitioner was cancelled by the Additional Director of Secondary Education,Allahabad vide his order dated 24.7.1997. The petitioner felt aggrieved and filed Writ Petition No.26120 of 1997 wherein an interim order was granted permitting the continuance of the petitioner and payment of salary. The writ petition was decided on 15.2.2001 and the order of the Additional Director of Secondary Education, U.P. Allahabad dated 24.7.1997 was quashed. The Hon'ble single Judge held that since Raj Nath Ram was working on the promoted post of L.T. Grade and his promotion has not been set aside therefore there is no question of dis-approving the appointment of the petitioner. Against the said order the State filed Special Appeal no.192 of 2001 which was dismissed. The State Government accordingly issued an order dated 31.7.2002 for compliance of the judgment of the High Court.

From the orders of the Hon'ble Court referred to above it is apparently clear that there had been no consideration of the issue as to whether the petitioner was possessed of valid degree equivalent to B.Ed or not, which is an essential qualification prescribed under the Appendix A to Chapter II of the Regulations framed under the Act 1921, either by the Single Judge or by the Division Bench of this Court.

It appears that one Shiv Narain Upadhya made a complaint with regard to the petitioner being not possessed of requisite qualification and an FIR was also lodged in that regard. Shiv Narain filed Writ Petition No. 34623 of 2005 which was disposed of vide order dated 28.4.2005 asking the District Inspector of Schools to examine all aspects of the matter. The DIOS vide order dated 8.6.2009 refused to examine the legality of the appointment of the petitioner on the ground that the issue cannot be re-opened in view of the order of the Writ Court dated 15.2.2001 and that of the Division Bench dated 11.4.2001. It has also been recorded that the petitioner was getting salary under orders of the State Government issued in compliance to the order of the High Court referred to above.

With the passing of the order of the Court and the State Government as aforesaid, the Officers concerned thought that now the ball has come in their court and they can do what ever they like.

In furtherance of their effort as aforesaid the Joint Director of Education, Mirzapur on the recommendation of the Regional Committee of which D.I.O.S. is also a member issued an order on 24.12.2003 directing the regularization of the services of the petitioner under section 33 Cha i.e. (Section 33 F) of the U.P.Act No. 5 of 1982 w.e.f. 30.12.2001. This regularization of the petitioner has been done against the vacancy which is stated to be caused in C.T.Grade (converted into L.T. Grade) due to Regularization of Raj Nath Ram in L.T.Grade, by means of the same order i.e. 30.12.2001 and with reference to the same provision.

It has been stated before this Court in the affidavit filed by the Joint Director of Education that the services of Raj Nath Ram were regularized as C.T.Grade teacher under order dated 11.2.93 w.e.f. 6.4.1991. The Court is surprised with the stand so taken. As already noticed above Raj Nath Ram is stated to be appointed on Ad-hoc basis in C.T. Grade against a vacancy caused due to promotion of Raghav Ram Upadhyaya on 30.7.88. Under which provision ad hoc appointment in C.T.Grade could be regularized is not known at least no statutory provision could be referred to by the counsel. Moreover C.T.Grade was declared a Dying Cadre in the year 1990 itself. It logically follows that in the year 1993 there could not have been regularization of Raj Nath Ram in C.T.Grade. The papers prepared in that regard are only an attempt by the DIOS who was working as Authorized Controller of the institution to suggest regularization of Raj Nath Ram so as to further suggest a substantive vacancy against which petitioner could be regularized. In the facts of this case their action has resulted in the public exchequer being defrauded.

This Court may not express any further opinion in the matter of Raj Nath Ram, in as much as he is not a party to these proceedings. The issue in that regard is left to be examined by the Secretary of the Education Department for which directions shall be issued hereunder.

However, so far as the petitioner is concerned he admits that he was appointed and was working against the short term vacancy in C.T. Grade on Ad-hoc basis in the year 1993. Although this Court may not go behind the order of Writ Court dated 26.10.97 which has since been affirmed with the dismissal of the Special Appeal No. 192 of 2000 on 15.2.2001. The Court can certainly examine as to whether regularization under the order dated 24.12.2003 is in accordance with law or not. It may be clarified that under the judgment and order of the learned Single Judge dated 26.20.97petitioner has permitted to continue only till regular appointment is made.

Section 33F was added to Act 1982 only by Ordinance No.19 of 2000. This provision has no application quo teachers working as Ad-hoc C.T. Grade teachers. It applies only to the Ad-hoc teachers working in L.T. Grade or Lecturer Grade. For ready reference Section 33 F of U.P. Act No. 5 of 19982 is quoted below:

"33-F. Regularization of appointment against short term vacancies -

(1) (Any teacher who,-

(a) was appointed by promotion or by direct recruitment in the lecturer's grade or trained graduates grade on or after May 14, 1991 but not later than August 6,1993 against a short term vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficultieis) (Second) Order, 1981,as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy;

(b) possesses the qualification prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921;

(c ) has been continuously serving the institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment )Act, 2001;

(d) has been found suitable for appointment in a substantive capacity by the Selection Committee referred to in Clause (a) of sub-section(2) of Section 33-C in accordance with the procedure prescribed under Clause (b) of the said sub-section; shall be given substantive appointments by the Management.

(2) (a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment.

(b) If two or more such teachers are appointed on the same date the teacher who is elder in age shall be recommended first.

(3) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.

(4) A teacher who is not found suitable under sub-section(1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.

(5) Nothing in this section shall be construed to entitle any teacher to substantive appointment, if on the date of the commencement of the ordinance referred to in Clause (c) of sub-section (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act."

The reason for not including C.T. Grade teachers there under is also obvious. C.T. Grade was declared a dying cadre under the Government order dated 4.12.1990. It is provided thereunder that from the date of the Government Order on the substantively vacant posts in C.T. Grade and those which mayh be so caused in future shall cease. The post shall stand converted into L.T.Grade . The Section 33 F of Act No. 5 of 1982 was added on 30.12.2000 i.e. after 10 years of the C.T. Grade being declared a Dying Cadre. Thus the legislature was aware that there can be no regularization of Ad-hoc appointee in the C.T. Grade. Post shall cease. C.T. Grade working against a short term vacancy as after 1990 on the short term vacancy become substantively vacant. This post shall stand converted into L.T. Grade thereafter. An Ad-hoc appointee against short term vacancy in C.T. Grade cannot be regularized on a higher post that is L.T. Grade.

In the alternative if the contention raised on behalf of the State to the effect that Raj Nath Ram was regularized as L.T.Grade teacher in the year 2003 is taken to be correct what logically follows would be that the vacancy against which the petitioner was working under the order of this Court would stand converted into a substantive vacancy in C.T. Grade and therefore in view of the Division Bench judgment of this Court in the case of Surendra Kumar Srivastava v. State of U.P. and others reported in 2007(1) ESC 118 (All) (DB) wherein all earlier judgments of the Division Bench as well as the judgment of the Single Judge (delivered by me) in the case of Smt. Sarita Gupta v. District Inspector of Schools, Firozabad and others had specifically been taken note of the incumbent cannot continue and his appointment would come to an automatic end. In any case the C.T. Grade being declared a Dying Cadre the short term appointtee has to be removed once the vacancy becomes substantive as thereafter a post of L.T. Grade comes into existence.

The order dated 24.12.2003 directing regularization is bad for another reason also namely that the petitioner is not possessed of the prescribed minimum qualification, even if for the argument sake Section 33 F is taken to be applicable qua C.T. Grade teachers also. Section 33 F (b) requires that the teacher concerned must be possessed of prescribed qualification or must have been exempted there from in terms of the Intermediate Education Act before he can be regularized under the said section.

This Court in Gulam Rasul Warsi v. State of U.P. in Writ Petition No. 26807 of 2004 vide judgment and order dated 2.11.2004 has held that the degree of Shiksha Alankar from Rashtriya Patrachar Sansthan, Kanpur which is an un-recognized institution is not equivalent to B.Ed. qualification. A further direction was issued to the Chief Standing Counsel to take immediate steps to prosecute the Sansthan and other persons engaged by the Sansthan. Reference may also be made to the Division Bench judgment of this Court in Public Interest No. 56676 of 2007 Vidyawasini Upadhyay v . State of U.P. and others wherein the degree granted by Rashtriya Patrachar Sansthan has been held to be a bogus qualification. It appears that the judgments which are delivered by this Court in respect of such fraudulent institutions are treated to be waste paper by the State as no action appears to be taken against such institution and the persons like the petitioner who obtain appointment on such bogus qualification.

In order to justify the illegal order dated 24.12.2003 the Regional Joint Director of Education at the relevant point of time in his order of regularization dated 24.12.2003 (Annexure CA-5 of the affidavit of the Regional Joint Director of Education) has deliberately disclosed the pay scale of the petitioner as "samanya pay scale" In the State of Uttar Pradesh teachers in Intermediate Colleges are either appointed for primary section as Primary teacher or in C.T. Grade, L.T. Grade or Lecturer Grade . There is no Grade as "samanya grade' as recorded in the impugned order. The reason for such fact being stated in the order is but obvious. If the Regional Joint Director of Education had disclosed that the petitioner was working in C.T. Grade, the order on the face of it would be hit by section 33 F of the U.P. Secondary Education (Services Selection Boards)Act, 1982 as it does not apply to C.T. Grade teachers.

This Court offered an opportunity to the Regional Joint Director of Education vide order dated 16.1.2007 to examine all aspects of the matter and to come out with correct facts. The Regional Joint Director of Education instead of responding fairly made an attempt to justify the illegalities which had been committed and for the purpose referred to the orders as noticed above.

This Court has no hesitation to hold that the order dated 24.12.2003 which records the petitioner to be a teacher in "samanya grade" and directs his regularization against the vacancy caused due to alleged regularization of Raj Nath Ram in L.T.Grade is a negation of Rule of Law and an attempt to defraud the exchequer. Such orders create an impression in the mind of public at large that the education authorities can do what ever they like and can violate the statutory provisions applicable . The Officers as well as the petitioner who have colluded themselves to create the situation have to be dealt with firm hand and no leniency is to be shown. Education is the back bone of this democratic country Officers cannot be permitted to ruin the purity of the eduction in the manner it has been done in this case.

The order regularizing the services of the petitioner dated 24.12.2003 is held to be a nullity and it confers no right upon the petitioner to claim that he is a teacher in L.T. Grade entitl3ed to be considered for promotion to Lecturer Grade.

This Court further holds that as a consequent to conversion of the vacancy in C.T.Grade from short term vacancy to substantive on the alleged regularization of the earlier incumbent on higher post, the appointment of the petitioner would come to an automatic end by operation of law, in view of the Division Bench judgment in Surendra Kumar Srivastava (supra) even otherwise he being not qualified cannot continue. Salary drawn by the petitioner thereafter must be recovered from the petitioner ,the DIOS at the relevant time who was acting as Authorized Controller and the Regional Director of Education who passed order for regularization equally at the earliest possible. The Secretary Education must take all necessary action without delay.

The District Magistrate, Mirzapur is also directed to lodge an First Information Report against all the aforesaid persons with reference to the facts noticed above.

The Secretary shall hold an enquiry in the matter of appointment of Raj Nath Ram and his continuance in accordance with law.

The Secretary (Secondary Education), U.P. is directed to forward a copy of this order along with the copies of the judgment in the case of Gulam Rasul Warsi (supra) to all the DIOS, Regional Director of Education through out the State of Uttar Pradesh with a specific direction that all teachers appointed in a recognized and aided Intermediate College with a degree of 'Shiksha Alankar' granted by Rashtriya Patrachar Sansthan, Kanpur shall immediately be removed from service and it shall be ensured that no further payment of salary is made to them.

With the aforesaid directions this writ petition is dismissed with cost of Rs.10,000/= which may be recovered by the State from the petitioner.

Dated: 19.7.2011 / ssm