Manoj Kumar Sharma vs R.I.G.S. And Others
2011 Latest Caselaw 5317 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 10
 
Civil Misc Writ Petition No. 7732 of 1994
 
Manoj Kumar Sharma					..... Petitioner
 
Vs
 
The Regional Inspectress of Girls Schools,
 
Agra and others						..... Respondents	
 

 
With
 
Civil Misc Writ Petition No. 11233 of 2006
 
Smt. Geeta Rani						..... Petitioner
 
Vs
 
District Inspector of Schools-2, Agra
 
and others							..... Respondents
 

 
With
 
Civil Misc Writ Petition No. 51876 of 2011
 
Committee of Management Smt. Bhagwati 
 
Devi Jain Kanya Inter College, Agra and others	..... Petitioner
 
Vs
 
District Inspector of Schools-2, Agra
 
and others							..... Respondents
 

 

 
Hon. Arun Tandon, J.

The dispute raised in these three connected writ petitions pertains to the appointment on the same post of Assistant Clerk in the same institution. Therefore, all these writ petition are being decided by means of this common judgment.

Rejoinder affidavit filed on behalf of the petitioner is taken on record.

First petition has been filed by Manoj Kumar Sharma. Smt. Bhagwati Devi Kanya Inter College, Allahabad is an institution aided and recognized under the Intermediate Education Act. The provisions of U.P. Act No. 24 of 1971 are also applicable to the same.

According to the petitioner one Ram Prakash Sharma was promoted as Head Clerk, as a result whereof a post of Junior Clerk became vacant in the institution. The Committee of Management appointed the petitioner as Assistant Clerk on 29.09.1992. The said appointment of the petitioner is stated to have been approved by the Regional Inspectress of Girls Schools, Agra under order dated 25.01.1994. The order of approval has been enclosed as Annexure-II to the writ petition. It is claimed that the petitioner has been discharging his duties as Clerk since 29th September, 1992 and is entitled to his salary.

Despite submission of the salary bill by the management, salary was not paid to him. The petitioner, therefore, approached this Court and prayed for a mandamus directing the State authorities to ensure payment of salary to the petitioner on month to month basis.

On the aforesaid allegations, an interim mandamus was issued by this Court on 02.03.1994, which reads as follows:

"Learned Standing Counsel representing the respondents No. 1, 2 and 4 prays for and is granted one month's time to file a counter affidavit.

Apart from normal mode of service, the petitioner shall serve the respondent No. 3 out of court, for which purpose, if the requisite steps are taken within three days, the office shall handover the necessary notices etc. to the learned counsel for the petitioner. The notices issued shall indicate that the writ petition shall be listed for admission on 28th April, 1994 by which date the said respondents may file a counter affidavit.

List for admission on 28.4.1994.

In the meanwhile, considering the implications arising under the order dated 25.1.1994, passed by the Regional Inspectress of Girls Schools, Agra and the order dated 21.2.1994, passed by the District Inspector of Schools, respondent No. 4, and the fact that the payment of salary to the petitioner inspite of the financial approval of the State, appointment having been accorded in terms of the order dated 25.1.1994 is not being paid to him even though no appointment has been proposed in terms of the Government order dated 30.7.1992, sufficient ground has been made out for the issuance of an interim mandamus.

Let an interim mandamus be issued requiring the respondents to ensure the payment of salary to the petitioner henceforth to which he is entitled on the basis of the financial approval granted by the Regional Inspectress of Girls Schools, referred to hereinbefore. This interim mandamus will cease to be operative if the answering respondents show cause by filing a counter affidavit by the date fixed. It is however, made clear that non-submission of the bill by the Committee of management shall not come in the way of the concerned authority in disbursement of the salary to the petitioner."

From the records of the present writ petition it is apparently clear that a counter affidavit was filed on behalf of the Committee of Management on 27.04.1994. Meaning thereby that the interim mandamus ceased to be operative. Therefore, there was no occasion for any payment of salary being made to the petitioner. It has, however, happened otherwise. Because of the said order the State authorities have ensured payment of salary to the petitioner in alleged compliance of the said order dated 02.03.1994. The State authorities have chosen not to file any counter affidavit.

In the counter affidavit of the Committee of Management it has specifically been stated that the alleged appointment claimed by the petitioner is a farce. He was never selected for the post, which became vacant due to promotion of Sri Ram Prakash Sharma as Head Clerk. The Committee of Management did not pass any resolution offering appointment to the present petitioner as Clerk in the institution. It was further explained that Ram Prakash Singh is none other than the father of the petitioner himself and that it was he who has manipulated documents in collusion with the Regional Inspectress of Girls Schools. Reference was also made to the letter of the Regional Inspectress of Girls Schools 31.03.1993, wherein she refused approval to the appointment of the present petitioner after recording a categorical finding that there was no vacancy against which the petitioner could be appointed in the year 1992.

In paragraph 30 of the counter affidavit it is stated that no procedure known to law has ever been followed in the matter of alleged appointment claimed by the petitioner. The only purpose of the present writ petition was to obtain salary from the public exchequer on one pretext or other with the help of his own father Ram Prakash Sharma, who was the then Head Clerk.

The petitioner has taken more than 17 years to file a reply to the counter affidavit of the management. The District Inspector of Schools till date has not chosen to file any counter affidavit. The reasons are obvious. The State education authorities want to be non committal.

In the rejoinder affidavit, filed today by the petitioner, there is no denial to the fact that the Regional Inspectress of Girls Schools vide order dated 31st March, 1993 refused approval to the appointment of the petitioner for want of vacancy. However, it is stated that it was issued under some misconception, but what was the misconception has not been explained. With regard to the averment made in paragraph 30 qua no procedure known to law having been followed before alleged appointment of the petitioner, only reply given is that since approval has been granted by the competent authority, the Committee of Management has no authority under law to doubt the same. It has further been stated that since papers have been forwarded in Form-15-A and 15-B, it is to be presumed that a resolution must have been passed by the Committee of Management.

This Court, after taking note of the submissions made in the counter affidavit and that rejoinder affidavit had not been filed for 17 years, required the District Inspector of Schools to produce the original records in respect of the alleged appointment of Manoj Kumar Sharma.

The original records have been produced today and have been examined in the presence of the counsel for the petitioner.

From the original records this Court finds that there is resolution no. 5 of the Committee of Management dated 28.12.1992, which records that on the recommendation of the Principal of the institution the period of temporary appointment of Manoj Kumar Sharma is extended up to 30th June, 1993 and papers be forwarded in respect of the temporary appointment to the District Inspector of Schools. It is along with the said resolution that the Form 15-A and 15-B were forwarded by the Committee of Management.

Although the resolution talks of temporary appointment but deliberately the nature of appointment in Form 15-A and 15-B was shown as permanent. Thereafter another letter was sent by the Committee of Management on 16.01.1993 seeking approval of appointment of the present petitioner w.e.f. 29.09.1992. This letter makes no mention of the resolution of the Committee of Management dated 28th December, 1992.

The Regional Inspectress of Girls Schools on 31st March, 1993 passed a reasoned order holding therein that there was no post available in the institution in the cadre of Assistant Clerk and therefore there was no occasion for any consideration being made to the request made for appointment by the management. The order specifically records that there were one post of Head Clerk and three post of Assistant Clerk sanctioned in the institution against which required number of persons were already working.

This order dated 31st March, 1993 was not subjected to challenge by the Manager/Principal of the institution at any point of time. However, there is a report by the Accounts Officer dated 30th June, 1993, which suggests that there are four post of Assistant Clerk sanctioned in the institution.

There after two letters have been written by the Regional Inspectress of Girls Schools. There is a letter to the Accounts Officer dated 09.09.1993 which seeks explanation with regard to the post which had fallen vacant due to promotion of Ram Prakash Sharma in the year 1993 and as to why in terms of the Government Order dated 30th July, 1992 compassionate appointment be not made. The Accounts Officer asked for some clarification from the Committee of Management.

All of sudden the Regional Inspectress of Girls Schools issued an order on 25.01.1994, relevant portion whereof reads as follows:

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	The aforesaid order has become the basis for approaching this Court for payment of salary.
 

This Court may record that neither any advertisement in respect of the post in question said to have been published nor any selection proceedings for the purpose of appointment are either available in the records nor have been disclosed either by the petitioner or by the District Inspector of Schools in any of their affidavits.

From the resolution of the Committee of Management offering appointment to the present petitioner dated 28.12.1992, which fact has been concealed by the present petitioner, it is apparently clear that he was offered only temporary appointment till 30th June, 1993 and that too on the recommendation of the Principal of the institution. There is no other resolution of the Committee of Management offering regular appointment to the petitioner in the institution. Even otherwise there being no selection proceedings, no advertisement and no resolution of the Committee of Management for such regular appointment of the present petitioner, the question of his appointment being approved against the alleged vacancy of his father namely Ram Prakash Sharma is on the face of it a concoction of the facts with an ulterior motive to obtain payment of salary from the State Exchequer.

This Court may further record that appointment on the ministerial post under Regulation 101 of Chapter-III of the Regulations framed under the Intermediate Education Act can only be made with the prior approval of the District Inspector of Schools, as has been laid down by the Division Bench of this Court in the case of Jagdish Singh etc. vs. State of U.P. and others etc., reported in (2006) 3 UPLBEC 2765.

At no point of time the Committee of Management had requested for regular appointment of the petitioner nor any resolution was ever forwarded for the purpose. The order of the Regional Inspectress of Girls Schools dated 25.01.1994 is therefore a document prepared for conferring illegal benefit upon the petitioner.

This Court finds from the records that no procedure known to law in the matter of appointment of the petitioner on regular basis was adopted. Such appointment has necessarily to be held to be void, being violative of Article 14 of the Constitution of India.

Hon'ble Supreme Court of India has repeatedly held that any appointment made without advertisement of the vacancies, where the incumbent became entitled for the salary from the State exchequer, would be a nullity. The Hon'ble Supreme Court time and again has reiterated that selection on any public post must be held after due publication of advertisement in newspaper so that eligible candidates have an opportunity to participate in the selection.

In Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., (2006) 4 SCC 1, a Constitution Bench of the Hon'ble Supreme Court came to the conclusion that adherence to the provisions of Articles 14 and 16 of the Constitution of India is a must in the process of public employment and an employee who has been appointed without following the procedure prescribed by law, is not entitled for any relief, whatsoever, including the salary.

In Union Public Service Commission Vs. Girish Jayantilal Vaghela & Ors., AIR 2006 SC 1165, the Hon'ble Supreme Court held that the appointment to any post under the State can only be made after a proper advertisement has been issued inviting applications from eligible candidates and holding of selection by a Body of Experts, and any appointment made without following the procedure, would be in violation of the mandate of Article 16 of the Constitution of India.

It is held accordingly.

In view of the aforesaid, the petitioner Manoj Kumar Sharma is held not entitled to any mandamus, as has been prayed for.

Writ Petition No. 51876 of 2011

From the records of the connect Writ Petition No. 51876 of 2011, filed by the Committee of Management, it is apparent that Manoj Kumar Sharma in fact did not work in the institution even for a single day and as a matter of fact he is stated to have been attached in the office of the District Inspector of Schools, where he claims to have worked.

Manoj Kumar Sharma was thereafter transferred to Gopi Chandra Shiv Hare Sanatan Dharma Kanya Inter College, Agra under an order dated 22.01.2011 (Annexure-8 to Writ Petition No. 51876 of 2011). Under which provision such attachment was directed could not be shown. He is stated to have worked in the said institution up to 24th May, 2011. Under the order impugned dated 02nd May, 2011 he was again reverted back in the institution in question. This order of reverting back Manoj Kumar Sharma in the institution, namely Smt. Bhagwati Devi Jain Kanya Inter College, Agra is subject matter of challenge in Writ Petition No. 51876 of 2011.

Since this Court has held that the appointment of Manoj Kumar Sharma was void, the order of attachment is held to be bad and of no legal consequence.

Writ Petition No. 11233 of 2006

Smt. Geeta Rani has filed this writ petition claiming the same post of Clerk.

Petitioner is permitted to implead the Director of Education, Secondary, U.P. Lucknow as respondent no. 6 during the course of the day.

Notice on behalf of the Director of Education has been accepted by the Standing Counsel.

The claim of the petitioner for appointment on the post of Assistant Clerk in the institution Smt. Bhagwati Devi Jain Kanya Inter College, Agra was directed to be considered by the District Inspector of Schools under order of the Writ Court dated 12.01.2005 passed in an earlier Writ Petition No. 11644 of 2000, filed by the present petitioner.

The District Inspector of Schools under the order impugned has refused to consider her claim on two grounds (a) One Manoj Kumar Sharma was already working as Assistant Clerk and was entitled to salary under the order of the Writ Court, and (b) that the appointment of the petitioner was made for a fixed period between 08th October, 1969 to 30th June, 1970 and therefore she was not entitled to continue after expiry of the said period of appointment. Her continuance thereafter and payment of salary has been declared to be illegal. Her claim that she has been regularized w.e.f. 04.10.1970 has not been accepted under the order impugned dated 24.05.2005.

So far as the working of Manoj Kumar Sharma is concerned, this Court has held, while deciding Petition No. 7732 of 1994, that his appointment was void. Therefore, the fresh ground qua working of Manoj Kumar Gupta against the post becomes non existent.

However, the other ground qua petitioner being not legally entitled to function after 30th June, 1970 needs to be examined with reference to the relevant document, as may be available in the office of the District Inspector of Schools and the Committee of Management.

In the facts of the case it would be in the interest of justice to permit the petitioner to ventilate her grievances by making a representation before the Director of Education at the first instance.

Accordingly, it is provided that the petitioner may make a representation ventilating all her grievances before the Director of Education within two weeks from today along with certified copy of this order, on such representation being made the Director of Education shall consider and decide the same by means of a reasoned speaking order, preferably within eight weeks, after affording opportunity of hearing to the Committee of Management.

The issue now arises as to what final order should be passed by this Court qua the fraud played by the petitioner in collusion with the education authorities by misleading this Court in passing an interim mandamus, as referred to above.

The fraud vitiates all solemn acts and therefore, the position must be restored as on the date the petitioner obtained the interim mandamus. The petitioner and the Regional Inspectress of Girls Schools, who is stated to have passed the order dated 25.01.1994, and other education authorities involved must bear the consequences and must replay.

Accordingly, it is directed that the entire salary paid to the petitioner because of interim mandamus issued by this Court, despite counter affidavit having been filed on 27.04.1994, must be recovered from Manoj Kumar Sharma (petitioner), Regional Inspectress of Girls Schools, Agra and the District Inspector of Schools, who had passed the order of attachment dated 22.01.2001, as also the District Inspector of Schools who had passed the order dated 02.05.2011 in proportion to their liability.

For the said purpose the Secretary of the Secondary Education shall determine there respective liabilities and shall quantify the same within one month from the date of receipt of a certified copy of this order, after affording an opportunity. The money determined accordingly shall be recovered within two months thereafter.

With the aforesaid observation/directions the writ petition filed by Manoj Kumar Sharma (Writ Petition No. 7732 of 1994) is dismissed. The writ petition filed by the Committee of Management (Writ Petition No. 51879 of 2011) is allowed. The order passed by the District Inspector of Schools is declared null and void. The writ petition filed by Smt. Geeta Rani (Writ Petition No. 11233 of 2006) is disposed of. The salary of the Principal of the institution shall be released forthwith.

20.10.2011

Pkb/