Bansraj Pandey vs D.I.O.S. & Another
2011 Latest Caselaw 5366 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - A No. - 17660 of 1990
 

 
Petitioner :- Bansraj Pandey
 
Respondent :- D.I.O.S. & Another
 
Petitioner Counsel :- P.C.Misra,A.N.Pandey,A.N.Verma,P.Verma
 
Respondent Counsel :- S.C.,Ambrish Kumar
 

 
Hon'ble Sudhir Agarwal,J.

1. The order dated 21.02.2011 having been recalled by order of date passed on recall application, I proceed to hear the matter finally at this stage under the Rules of the Court.

2. It is not in dispute that institution in question is a recognized Intermediate College and is governed by U.P. Intermediate Education Act, 1921 (in brief "Act 1921"), U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as "Act 1971") and U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "Act 1982").

3. The post of Assistant Teacher, C.T.Grade claimed to have been created in the institution in question namely Kaushalya Devi Jaiswal Uchhtar Madhyamik Vidhyalaya, Maharajganj, District Jaunpur (hereinafter referred to as "College"). The vacancy being substantive, the post is claimed to have been advertised by respondent No.2 pursuant whereto the petitioner applied and selected. Respondent No.2 by appointment letter dated 16.11.1986 appointed the petitioner.

4. The aforesaid appointment, however, was not approved by District Inspector of Schools, Jaunpur (hereinafter referred to as "DIOS") whereafter respondent No.2 by means of impugned order dated 2.7.1990 terminated petitioner hence this writ petition.

5. A counter affidavit has been filed on behalf of DIOS wherein he has disputed the claim of petitioner about creation of post and it is pleaded that no detail has been given as to when, how and who created the post of Assistant Teacher (C.T. Grade) in the College. He has also questioned the alleged advertisement stating that no details have been given when and in what manner post was advertised. He has taken a defence that no vacancy of Assistant Teacher existed in the College and therefore the entire appointment of the petitioner is a farce.

6. A separate counter affidavit has been filed by respondent No.2 in which it has stated that DIOS granted permission to the College to run a new section of Class 8 and therefore the appointment was made by Committee of Management.

7. The petitioner has also filed rejoinder affidavit wherein he has admitted in para 4 that posts of teacher earlier created in the College were already filled in by the Management. The DIOS granted permission to open a new section in Class 8 by order dated 11.10.1982. Since a new section was to be opened, it would mean that the Management was entitled to appoint a new teacher also treating a new vacancy already created and that is how petitioner has been appointed. This averment of petitioner that post of teacher has to be deemed created as the permission was granted by DIOS to the College to start a new section of Class VIII is sufficient to prove that no post of Assistant Teacher, on which petitioner claims his appointment, was ever created by the competent authority. A mere permission to start a new section or new Class does not result in automatic creation of post unless a specific order to this effect is passed by competent authority. This issue has been considered and so held by a Full Bench of this Court in Gopal Dubey Vs. District Inspector of Schools, Maharajganj and Another, (1999) 1 UPLBEC 1.

8. Once it is clear that no post was sanctioned and created by competent authority, the question of valid appointment of petitioner on the post of Assistant Teacher obliging the respondent, and, in particular, the State exchequer to bear responsibility of salary of petitioner would not arise and the entire edifice to grant relief to petitioner falls to the ground for this reason alone.

9. Moreover, once it is clear that no post has been created in accordance with law by competent authority in the College in question, question of payment of salary under Act 1971 does not arise and therefore the petitioner cannot claim any benefit of salary from State Exchequer.

10. So far as validity of termination is concerned, once it is evident that there was no sanctioned post, the vacancy being nonest, appointment itself becomes nonest.

11. Moreover, the institution being Intermediate College the recruitment on the post of teacher could have been made only in accordance with the procedure prescribed in Act 1982. An appointment not made in accordance with procedure prescribed thereunder is nonest. Even if it is assumed that the post existed, the vacancy being substantive one, it was incumbent upon respondent No.2 to follow the procedure prescribed in para 5 of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981, which reads as under:

"5. Ad hoc appointment by direct recruitment. -(1) Where any vacancy cannot be filled by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).

(2) The Management shall as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.

(3) Every application referred to in clause (2) shall, be address to the District Inspector of Schools and shall be accompanied;

(a) by a crossed postal order worth ten rupees payable to such Inspector ;

(b) by a self-addressed envelope bearing postal stamp for purposes of registration.

(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality point specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.

(5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.

Explanation.- In relation to an institution imparting instruction to women the expression "District Inspector of Schools" shall mean the "Regional Inspectress of Girl's Schools".

12. This procedure has been considered in a catena of decisions of this Court as well as the Apex Court. A detailed judgment was rendered by a Full Bench of this Court in Radha Raizada Vs. Committee of Management, 1994 (2) ESC 345 (FB) and confirming the above Full Bench judgment, Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab-initio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under:

"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."

13. Again in para 11 of the judgment the Court held as under:

"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an in-built procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."

14. This decision has been followed and reiterated recently by the Apex Court in Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein the Apex Court has held as under:

"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State."

15. In the circumstances this Court has no doubt in its mind that the petitioner was never appointed on the post in question in accordance with the procedure prescribed in Removal of Difficulties Orders. In view of the decision of the Apex Court in Prabhat Kumar Sharma (supra), Shesh Mani Shukla (shukla) and Full Bench decision of this Court in Radha Raizada (supra), the alleged appointment of the petitioner would confer no right upon him either to hold the post or to continue in service or to claim salary.

16. In the present case since the petitioner has received salary pursuant to an ex parte interim order passed by this Court on 3.12.1990 which has caused substantial loss to the Government revenue, respondent No.1 is entitled to be restored back to the loss it has suffered due to interim order passed by this Court.

17. It is well settled that the act of Court shall prejudice none. The State-respondents also cannot be made to suffer only on account of an ex parte interim order passed by this Court when ultimately writ petition fails and the prejudice, if any, it has sustained, is liable to be mitigated by restoring the position, if it is permissible in terms of money or otherwise. This aspect has been considered in a catena of decision. It is well established that act of the court shall prejudice none. The service rendered pursuant to an interim order would not give any benefit to petitioner. This issue has been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under:

"An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal Vs. State of U.P. AIR 1968 Allahabad 139, while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:

"It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order."

18. The same principal has been reiterated in the following cases:

(A) AIR 1975 Allahabad 280 Sri Ram Charan Das V. Pyare Lal.

"In Shyam Lal Vs. State of U.P., AIR 1968 All 139 a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed."

(B) 1986 (4) LCD 196 Shyam Manohar Shukla V. State of U.P.

"It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal V. State of Uttar Pradesh) Lucknow, AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB)."

(C) AIR 1994 Allahabad 273 Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board.

"After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning."

19. Recently also in Raghvendra Rao etc. Vs. State of Karnataka and others, JT 2009 (2) SC 520 the Apex Court has observed:

"It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service. ............."

20. It is lastly contended that since the petitioner has continued and worked for more than the last two decades, therefore, he should be allowed to continue.

21. I am afraid. This would be divestion of justice and would amount to compel the respondents to commit a flagrant breach of law. It will also amount to clothing validity to something which is inherently illegal and void. This Court is a Court of law and has taken the oath of upholding rule of law. The prayer made is clearly against rule of law and, therefore, this Court shall be failing its constitutional obligations of holding majesty of rule of law if accept this request. A similar contention was raised before the Apex Court invoking the power under Article 142 in Alka Ojha Vs. Rajasthan Public Service Commission and Anr. (2011) 9 SCC 438 but it was rejected by the Court observing that such power cannot be exercised for conferring legitimacy to the appointment which were otherwise illegal and contrary to statute.

22. In view thereof the writ petition is dismissed. The amount of salary, if any paid to the petitioner pursuant to the interim order passed by this Court, shall be refunded by him within three months failing which the aforesaid amount shall be recovered as arrears of land revenue on a certificate issued by DIOS in this regard.

Order Date :- 21.10.2011

KA/PS

Civil Misc. Restoration Application No.250323 of 2011

IN

Case :- WRIT - A No. - 17660 of 1990

Petitioner :- Bansraj Pandey

Respondent :- D.I.O.S. & Another

Petitioner Counsel :- P.C.Misra,A.N.Pandey,A.N.Verma,P.Verma

Respondent Counsel :- S.C.,Ambrish Kumar

Hon'ble Sudhir Agarwal,J.

1. Learned counsel for the petitioner stated that the order has been passed without hearing him and he could not appear since one of the counsel Sri A.N.Pandey has sent illness i.e. the applicant.

2. Reason shown for non appearance is sufficient. The application is allowed. Order dated 21.02.2011 is hereby recalled.

Order Date :- 21.10.2011

KA/PS