Jaswant Singh vs State Of U.P. Thru' Secretary & ...
2011 Latest Caselaw 5368 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 23
 
Civil Misc. Writ Petition No. 11775 of 2007
 
Jaswant Singh
 
Vs. 
 
State of U.P. and others 
 

 
 Hon'ble Ran Vijai Singh,J.

There is an Institution known as Kishori Raman Inter College District Mathura, which is duly recognized under the U.P. Intermediate Education Act. The salary of the teachers and other employees are being paid under the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971.

The petitioner, who happens to be Assistant Teacher in the aforesaid Institution appointed on 24.12.1995, appears to be aggrieved by order dated 17.1.2007 passed by the District Inspector of Schools granting approval to the petitioner's appointment with effect from 3rd April, 2006 i.e the date of the judgment rendered in Writ Petition No. 56102 of 2005 Jaswant Singh Vs. State of U.P. and others.

The facts giving rise to this case are that few short term vacancies arose in the Institution in the year 1995, and in pursuant thereof, an appointment letter was issued to the petitioner along with others who were duly considered by the Committee for the appointment against short term vacancies. The papers regarding to the appointment of the petitioner along with other candidates were sent to the office of District Inspector of Schools by the Committee of Management but no decision was taken. Aggrieved by that, the petitioner along with other similarly situated persons has filed Writ Petition No. 17692 of 1996. The said writ petition was disposed of on 23.9.1998 with the direction to the District Inspector of Schools to consider the question of approval of the petitioner's appointment in the said writ petition. Pursuant thereto, the

District Inspector of Schools has considered the case of the petitioners in that very writ petition, and vide order dated 22.1.1999 he refused to grant approval of the petitioner's appointment.

Aggrieved by that order, the petitioner along with other teachers has filed another Writ petition No. 13538 of 1999, which was disposed of on 30.3.2005 with the following observations.

"In view of the aforesaid fact, I am of the opinion that the order passed by the district Inspector of Schools on 22.1.1999 annexure 1 to the writ petition is quashed and the matter is remitted back to the District Inspector of Schools for reconsideration regarding the approval of the petitioner appointment. While considering the case of the petitioners the District Inspector of schools will pass a detailed and reasoned order according to law after giving full opportunity to the petitioners as well as the committee of Management."

With these observations, the writ petition is disposed of. No order as to costs."

It appears thereafter a modification application was filed seeking modification in the order to fix a time limit for deciding the question of approval. The order was modified on 1.4.2005 and time limit was fixed for deciding the question of approval again. Pursuant thereto, the case was again considered and the same was rejected by the District Inspector of schools on 5.7.2005. Challenging the aforesaid order, the petitioner has filed Writ Petition No. 56102 of 2005, which was allowed by this Court on 3.4.2006 with the following observations.

"In view of the aforesaid, the order of the District Inspector of Schools cannot be sustained and is quashed. The matter has been considered by District Inspector of Schools on two occasions and on both the occasions, the approval has been rejected on frivolous grounds. Consequently remitting the matter back to the District Inspector of schools would serve no useful purpose. Accordingly, a mandamus is issued to the District Inspector of Schools to accord approval of the appointment of the petitioner on the post of Assistant Teacher in the Institution concerned within one month from the receipt of the certified copy of this judgment.

Writ petition stands allowed."

It is thereafter the impugned order has been passed granting approval to the services of the petitioner from the date of judgment of this court.

While assailing the impugned order, Sri V. K. Singh learned counsel appearing for the petitioner has submitted that similarly situated teacher has challenged this kind of order through Writ Petition No. 41700 of 2007 Rakesh Pal Vs. State of U.P. and others. The said writ petition was allowed by this court vide order dated 6.9.2011 with the direction to pay the salary to the petitioner from the date of initial appointment dated 26.12.1995. He has also submitted that once this Court has treated the appointment of the petitioners valid and examined the matter on merit and directed the District Inspector of schools without there being any stipulation in the judgment that the approval be granted from a particular date then it was not open to the respondents/District Inspector of Schools to fix the particular date of approval i.e. with effect from the date of judgment of this Court. In his submissions, approval was granted to the petitioner's appointment and it was not open to the respondents to grant approval from the date of the judgment of this Court. He ought to have approved the services from the date of joining.

Refuting the submissions of learned counsel for the petitioner, learned standing counsel has submitted that petitioner's initial entry in the service was not in accordance with law. Therefore, treating the date of judgment as valid one, the approval has been granted by the District Inspector of Schools from the date of the order of this court. In his submission, no infirmity can be attached with the impugned order and the writ petition deserves to be dismissed. He has also submitted that no blanket direction can be given by this Court for payment of salary with effect from the date of his initial appointment.

Sri Mohd. Yasin who has put in appearance on behalf of respondent no. 4 has supported the case of the petitioners. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of learned counsel for the parties, this writ petition is taken up for final disposal.

It is not in dispute that the petitioner's appointment was made against a short term vacancy along with other candidates and question of approval has been considered time and again by the competent authority and on three occasions it has been denied. Lastly this Court, while allowing the Writ petition 56102 of 2006, has given a positive direction to the District Inspector of Schools to accord the approval to the petitioner's appointment. This order has never been challenged and the District Inspector of Schools acted upon that judgment by granting approval.

Now the question would arise as to whether it was open to the District Inspector of Schools to fix a particular date for granting approval to the appointment of the petitioner. It is not in dispute that the petitioner's appointment was made against the short term vacancy under the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981 (herein after referred to as the order of 1981 ). Para 2 of the aforesaid order deals with the procedure for filling up the short term vacancies. Although, detailed procedure has been prescribed for considering the appointment against the short term vacancies in this order but for the purposes of this case, I would not like to discuss all the provisions except the provisions contained in Sub-para 3 (ii), (iii) and (iv) of Para 2 of the aforesaid order which are reproduced below :-

(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.

(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars

by him failing which the Inspector will be deemed to have given his approval.

(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.

Sub-para 3 (iii) and (iv) of Para 2 of the aforesaid order provides that the District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval and on receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.

Here in this case, efforts have been made by the respondents to state before the Court that the procedure contained in the order of 1981 has not been followed but this Court has allowed the Writ Petition No.56102 of 2005 and given a positive direction that approval be given to the petitioner's appointment and as has been noticed by me, the said order has become final. In this situation, it is to be seen what will be the effect of Sub-para 3 (iii) and (iv) of Para 2 of the order of 1981. Here it would transpire that a legal fiction has been made in the relevant provision for grant of approval and that has not been disputed by the State respondents and even if it is disputed it will make no difference as language used in Sub-para 3 (iii) and (iv) of the aforesaid order is unambiguous and clear providing that in case the approval is neither granted nor refused within seven days from the date of receipt of papers relating to appointment it will be deemed that the Inspector has granted the approval.

Discussing the legal fiction, the Apex Court in the case of Manorey @ Manohar Vs. Board of Revenue (U.P.) and others JT 2003 (3) SC 538 dealing with the language used in sub-section 4F of Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 which carves out an exception in favour of an agricultural labourer belonging to a scheduled caste or scheduled tribe having land below the ceiling of 3.125 acres. Irrespective of the circumstances in which such eligible person occupied the land vested in gaon sabha (other than the land mentioned in section 132), no action to evict him shall be taken and moreover, he shall be deemed to have been admitted as a bhumidhar with non transferable rights over the land, provided he satisfies the conditions specified in the sub-section. The High Court took the view that for conferring the right of Bhumidar with non-transferable right under Section 4F the person claiming the benefit has to satisfy the conditions laid down in Section 198. The Apex Court did not agree with the view of the High Court taking note of the fact of the legal fiction, by making following observation.

"In other words, the view of the High court was that a person covered by the beneficial provision contained in sub-section (4F) will have to still go through the process of allotment under section 198 even though he is not liable for eviction. As a corollary to this view, it was held that the occupant was not entitled to seek correction of revenue records, even if his case falls under sub-section (4F) of section 122B. We hold that the view of the High Court is clearly unsustainable. It amounts to ignoring the effect of a deeming provision enacted with a definite social purpose. When once the deeming provision unequivocally,

provides for the admission of the person satisfying the requisite criteria laid down in the provision as bhumidhar with nontransferable rights under section 195, full effect must be given to it. Section 195 lays down that the Land Management Committee, with the previous approval of the assistant collector in-charge of the sub-division, shall have the right to admit any person as bhumidhar with nontransferable right to any vacant land (other than the land falling under section 132) vested in the gaon sabha. Section 198 prescribes" the order of preference in admitting persons to land under sections 195 and 197" The last part of sub-section (4F) of section 122B confers by a statutory

fiction the status of bhumidhar with non transferable right on the eligible occupant of the land as if he has been admitted as such under section 195. In substance and in effect the deeming provision declares that the statutorily recognized bhumidhar should be as good as a person admitted to bhumidhari rights under section 195 read with other provisions. In a way, sub-section (4F) supplements section 195 by specifically granting the same benefit to a person coming with the protective umbrella of that sub-section. The need to approach the gaon sabha under section 195 read with section 198 is obviated by the deeming provision contained in sub-section (4F). We find no warrant to constrict the scope of deeming provision."

In the case of Sant Lal Gupta and others Vs. Modern Cooperative Group Housing Society Ltd and others 2010 (13) SCC 336 following observation has been made by the Apex Court.

"It is the exclusive prerogative of the legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist."

Taking note of the law laid down by the Apex Court in the above cases, I am of the view that once there was a deeming provision under the relevant statute with respect to the approval of appointment, it was not open to the District Inspector of Schools, to grant approval from the date of judgment of this Court, which appears to me, contrary to the statute particularly keeping in view the provisions contained in U.P. Secondary Education Service Commission (Removal of Difficulties) (II) Order 1981, which provides about the deeming approval of the appointment after seven days from the date of receipt of papers relating to the appointment of a teacher and once deeming clause is there the question of further approval was not required but time and again either on instance of the order of this court or suo moto the matter was considered by the District Inspector of Schools and the approval was refused against the statute and once the approval was granted by this Court, there was no occasion for the District Inspector of

Schools to accord approval from the date of order of this court, as the validity of the appointment was to be seen on the date of appointment and not on the date of the judgment of this court. It is also noticeable that under the same set of facts, the Writ Petition no. 41700 has been allowed by this Court .

In view of that, the writ petition succeeds and is allowed. The impugned order dated 7.1.2007 passed by District Inspector of Schools Mathura is hereby quashed. The District Inspector of Schools is directed to pass fresh order regarding the petitioner's approval from the date of his appointment/joining in view of the observation made in this judgment. Needless to say that if the petitioner's appointment is approved from the date of his joining/appointment, the consequences of that shall follow. This exercise has to be done by the District Inspector of Schools within a period of two months from the date of receipt of certified copy of the order of this Court.

Dt/- 21.10.2011

Pratima