Ashok Kumar Tiwari vs D.I.O.S. & Others
2013 Latest Caselaw 7135 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved.
 
Case :- WRIT - A No. - 49190 of 2003
 

 
Petitioner :- Ashok Kumar Tiwari
 
Respondent :- D.I.O.S. & Others
 
Counsel for Petitioner :- B.N.Mishra, G. Prasad, G.Pratap, R.B.         
 
   Misra,R.V.Mishra
 
Counsel for Respondent :- C.S.C., R.S.Srivastava, U.S.Mishra, V.S.     
 
                            Misra,Veerrndra Kumar Shukla
 

 
Hon'ble Krishna Murari, J.

Heard Sri Gajendra Pratap, learned Senior Advocate for the petitioner and the learned Standing Counsel.

By means of this petition filed under Article 226 of the Constitution of India, the petitioner has approached this Court challenging the legality, and validity of the order dated 29.01.2003 passed by the District Inspector of schools. Further a writ of mandamus has also been claimed commanding the respondents to approve appointment of the petitioner and to pay regular salary as LT Grade Teacher in the institution.

There is an institution by the name of Shitla Deen Intermediate College, Baghana, Allahabad which is a recognized and aided institution governed by the provisions of Payment of Salaries Act, 1971. The petitioner claims that there are 16 posts of LT grade teacher sanctioned in the institution. Out of 16 posts only 12 Assistant Teachers were working in the institution and thus 04 posts were lying vacant. Petitioner further claims that four vacancies were caused due to resignation of one Narendra Kumar Rai on account of his appointment in Government Inter College, second was caused on account of death of Ambika Prasad another teacher in LT grade, third was caused due to transfer of Tribhuwan Nath Mishra, in CT grade from the institution in question to Madan Mohan Malviya Intermediate College, Karchana, Allahabad and the fourth vacancy was caused due to resignation of Sheikh Mukhtar Ahmad on being selected and appointed as Sub Inspector in Police Department. All the four above mentioned teachers were working in the institution substantively and were being paid regular salary. After the post fell vacant, the committee of management sent a requisition to the respondent no. 1 for filling up the same. When the District Inspector of Schools failed to make any appointment, committee of management invited application to fill-up the said vacancies. The petitioner along with other candidates appeared before the selection committee constituted for holding interview on 29.05.1991. The selection committee recommended the name of the petitioner along with three other persons for appointment. On the basis of the recommendation of the selection committee, committee of management vide resolution dated 29.06.1991 approved the selection of the petitioner and accordingly appointment letter was issued, in pursuance whereof, the petitioner joined the institution with effect from 01.07.1991. A proposal for approving the appointment of the petitioner along with other selected candidate was sent to the District Inspector of Schools on 02.07.1991. However, no disapproval was received. After long gap of time, some inquiry was made from the management of the institution which was duly replied. Still when no decision was taken by the District Inspector of Schools, the petitioner approached this Court by means of writ petition no. 39692 of 1992 which was disposed of commanding the District Inspector of schools to take appropriate decision in accordance with law. It was thereafter the District Inspector of Schools vide order dated 23.04.1994 refused to grant approval to the appointment of the petitioner on the ground that there were 14 sanctioned post of LT/CT grade teacher in the institution, against which 12 teachers were functioning and thus appointment of four teachers against two vacancies was in excess of sanction post and was illegal. Against the order of the District Inspector of Schools when the matter was taken up before this Court, it was directed that the petitioner may approach the Joint Director of Education. In pursuance of the said order, petitioner made a representation before the Joint Director of Education who passed an order dated 14.07.1995 rejecting the claim of the petitioner. Joint Director of Education took entirely different view from the one taken by the District Inspector of Schools. He held that although there were 16 posts of LT and CT grade in the institution but the post on which the appointments have been made had expired, therefore, the appointment of the petitioner and other incumbent was not in accordance with law. It was further held that the appointments were not made in accordance with the provisions of Clause 5 of the First Removal of Difficulties Order. The petitioner and other incumbent again filed writ petition no. 28918 of 1995. This Court vide order dated 17.08.1998 allowed the writ petition on the ground that scope of inquiry was enhanced by the Joint Director of Education and the approval has been refused on the ground which were not there in the order of the District Inspector of Schools and the matter was remanded back to the District Inspector of Schools to consider the matter afresh. In pursuance of the order passed by this Court, the matter was again considered by the District Inspector of Schools, who vide order dated 08.07.1999 rejected the claim of the petitioner on the ground that there was no post available on which petitioner and other incumbent could have been appointed and otherwise also proper procedure was not followed. Petitioner again approached this Court by filing writ petition no. 45459 of 1999 which was allowed vide order dated 22.01.2002 and the matter was again remanded back to the District Inspector of Schools for making fresh decision in the light of the observation made in the judgment. It may be relevant to quote the following observations made in the judgment dated 22.01.2002 :

"In the light of the aforesaid submission as has come from both sides, it appears that the DIOS while passing the impugned order has not properly dealt with all the aspect in the light of the facts and materials as are available on record in respect to the strength of the teachers in the college as has been detailed by the petitioners in paras 29 to 34 of the writ petition. In this respect there also appears to be contradiction in the order passed by the educational authorities themselves as in the present case, impugned order as well as orders which were passed on two earlier occasions by the District Inspector of Schools and Joint Director of Education dated 23.04.1994 and 14.07.1995 respectively, which of course was challenged by the petitioners, a different finding regarding strength of teachers and for non approval in the petitioners selection are given. The various findings as has been given are to be reconciled and are to be set at rest in the light of the pleadings as has been set forth on behalf of the petitioners as referred above. It appears that as the respondent no. 1 has not correctly addressed to the issue regarding the strength of teachers and about lack of qualification in respect to the appointment, the matter requires reconsideration. Learned counsel for the petitioner also places reliance on the decisions reported in 1998 (3) UPLBEC 1722, Ashika Prasad Shukla Vs. DIOS & others and 1999 (3) UPLBEC 2069, Smt. Ram Dulari Vs. Joint Director of Education in support of his contention about propriety of the appointment of the petitioners. As the matter is to be re-dealt by the respondent no. 1, it will be appropriate if the respondent no. 1 is called upon to deal with the petitioners submission keeping in view the averments made in paras 29 to 34 of the writ petition as well as the decisions as has been relied upon by the petitioners and also keeping in mind the earlier decision as was given by the DIOS on 23.04.1994 and by the Joint Director of Education dated 14.07.1995.

The matter was reconsidered by the District Inspector of Schools and again vide order dated 29.01.2003, impugned in this petition, appointment of the petitioner has been disapproved on the ground that in view of the strength of the students, according to standard (MANAK), there could be only 11 posts in the institution against which 14 teachers are working and thus, the appointments have been made in excess with sanctioned post.

It is contended by the learned counsel for the petitioner that the District Inspector of Schools has further expanded the scope of inquiry contrary to the order of remand and re-determined the number of strength on the basis of the strength of the students in the institution which was impermissible. It is further pointed out that once the Joint Director of Education confirmed that number of sanctioned post in LT/CT grade in the institution was 16, it was not open to the District Inspector of Schools to have again reopened the matter and re-determined the same. Learned counsel has also referred to Annexure '1' to the supplementary affidavit dated 11.01.2012 which is a letter dated 24.09.1974 written by the District Inspector of Schools to the Principal of the institution permitting sanction of post of P. T. Teacher in CT grade and approving the appointment of one Sheikh Mukhtar Ahmad on the said post. Learned counsel for the petitioner further pointed out that vacancy on which petitioner was appointed was caused due to selection of one Sheikh Mukhtar Ahmad as Sub Inspector in Police.

In reply, learned Standing counsel has tried to defend the impugned order. It has been submitted that no appointment could have been made beyond sanctioned strength and thus the approval has rightly been refused and the impugned order does not call for any interference.

Referring to the averments made in paragraph 27 of the counter affidavit, he has reiterated that there was no sanctioned post in accordance with MANAK (standard) as per the number of students. The paragraph is only repetition of the calculation made by the District Inspector of Schools in the impugned order holding that there could be only 11 posts in the institution.

I have considered the arguments advanced by the learned counsel for the parties and perused the record.

It is an admitted fact that Joint Director of Education in its order dated 14.07.1995, on the basis of survey report in 1988-89, confirmed that one post of Principal, two posts of Lecturers and 14 posts of LT/CT grade teachers were sanctioned in the institution. He, however, refused to grant approval on the ground that the post on which the petitioner and other incumbents were appointed had become dead and without their revival, no appointment could be made on the said post. He also recorded a finding that appointments were not made in accordance with the provisions of Second Removal of Difficulties Order. The findings were set aside in writ petition no. 28918 of 1995, mainly, on the ground that Deputy Director of Education could not have travelled to different ground which was beyond the scope of the dispute before the District Inspector of Schools. Again when the matter was reconsidered by the District Inspector of Schools in pursuance of the judgment and order dated 17.08.1998 of this Court, he carved out a new ground for rejecting the claim of the petitioner i. e. in accordance with the strength of the students there could be only 11 sanctioned post. A further new ground was taken without referring to any material that the procedure had not been followed and the vacancy had not been advertised. This was neither the scope of inquiry before the District Inspector of Schools nor there was any material in this regard available on record. The order of the District Inspector of Schools was quashed by this Court in writ petition no. 45459 of 1992 and he was directed to reconsider the matter in the light of the observation which has been quoted above.

A perusal of the observation made in the said judgment clearly goes to show that the matter was to be considered in the light of the pleadings made in the said writ petition being paragraphs 29 to 34 of the writ petition. The Court categorically held that District Inspector of Schools has not correctly addressed the issue regarding lack of qualification in respect to the appointment, still the District Inspector of Schools again in the impugned order redetermined the sanctioned strength as per the standard in accordance with the number of students without making any reference to the pleadings contained in the earlier writ petition, though this Court categorically directed to consider the same. Reference at this stage may be made to the pleadings in this regard contained in the writ petition. It has been categorically stated that the District Inspector of Schools has only taken strength of the students over the years between VI to X ignoring the number of students in Class XI to XII though the LT grade teachers are also taking Classes of XI and XII in the institution. The District Inspector of Schools in the impugned order without considering this aspect of the matter despite specific direction of this Court again re-determined the strength on the basis of the sanctioned post of teachers in accordance with the number of students in Class VI to X ignoring the students of Class XI and XII. The order of the District Inspector of Schools in this regard is clearly in violation of the direction of this Court contained in the remand order. The District Inspector of Schools has taken another ground for rejecting the approval of the petitioner that the appointment was not made in accordance with the provisions of Second Removal of Difficulties Order. This ground again cannot be sustained for the reasons firstly rejection of approval on this ground did not find favour with this Court in the earlier writ petition and secondly without recording any reason for holding that there has been violation of the procedure, a simple finding has been recorded. Mere finding without supported by reasons in reference to the material for recording reasons is not liable to be sustained.

Apart from the above, it was impermissible for the District Inspector of Schools to have taken either the same ground for rejecting the approval which was set aside by this Court or even a new ground which was beyond the scope of the dispute. The District Inspector of Schools cannot be permitted to find out new ground every time for rejecting the approval and that too without any material on record to substantiate the same and an opportunity to the petitioner to defend.

In view of the above facts and discussions, the impugned order dated 29.01.2003 passed by the District Inspector of Schools is not liable to be sustained and is hereby quashed. The writ petition stands allowed.

The appointment of the petitioner was made in 1991 and since then approval is being refused on one ground or the other which in the series of litigation did not find favour with this Court and the orders have been quashed. In paragraph 42 of the writ petition, it has been categorically stated that the petitioner has been continuously working and discharging his duties and to support the allegation copy of the attendance register has been filed. There is no specific denial of the averments in the counter affidavit.

In the facts and circumstances, a mandamus is issued commanding the District Inspector of Schools to accord approval to the appointment of the petitioner and make payment of salary accordingly.

However, in the facts and circumstances, there shall be no order as to costs.

Order Date :- November 27, 2013

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