Smt. Renu Singh vs State Of U.P. Thru ...
2017 Latest Caselaw 2902 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 7                                                                                       AFR
 

 
Case :- SERVICE SINGLE No. - 15678 of 2017
 

 
Petitioner :- Smt. Renu Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt. & Ors.
 
Counsel for Petitioner :- Madhumita Bose
 
Counsel for Respondent :- C.S.C.,Vindhyawashini Kumar
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. This petition seeks quashing of an order dated 18.3.2017 terminating petitioner's services. Approval granted to it by the District Basic Education Officer on 3.3.2017 is also assailed. The order of termination refers to communication dated 4.2.2017, sent by the Administrator/Authorized Controller to the District Basic Education Officer, holding that petitioner's continuance as Assistant Teacher in institution is not legal and proper and thus seeking approval for termination. This communication is accompanied by an order of the Authorized Controller running into ten pages, which contains elaborate discussion on the charges levelled against the petitioner, defence setup by her and also the conclusions drawn. This communication alongwith its enclosures has been brought on record by way of a supplementary affidavit. The order records primarily following reasons for petitioner's termination i.e. (i) there existed 8 sanctioned posts of Assistant Teacher in 1997 when the institution was taken on aid, and all of which were already filled, and therefore, in the absence of vacant post, the petitioner could not have been appointed; (ii) petitioner lacked essential eligibility qualification inasmuch as she does not possess training qualification in terms of the rules and her appointment, therefore, is bad; (iii) it is also observed that the appointment was obtained by manipulation and without following the procedure contemplated in law.

2. The order is challenged primarily on the ground that having satisfactorily worked for 20 years, it would be inequitable to terminate petitioner's services inasmuch as she has become overage for any other job and her career would be ruined. It is stated that appointment of the petitioner was duly approved by the authorities and that in an enquiry conducted earlier by the Assistant Director her appointment was found to be valid. It is also stated that having worked for 20 years, the petitioner ought not to have been terminate for lack of training qualification as she has gained sufficient experience while working and the object of securing training has lost its significance. It is also contended that an approval was granted by the competent authority for opening a new section in the institution and it is against consequential additional post that petitioner was appointed to which approval was also granted. Learned counsel further submits that the post was widely advertised in Hindi daily newspaper 'Dainik Nagar' and it is with reference to the similarly placed other persons that petitioner is entitled to continue.

3. The petition is opposed by the learned Standing Counsel representing respondent nos.1 and 2 and Sri Vindhyawashini Kumar, learned counsel appearing for respondent no.3, contending that petitioner's appointment is void and is not liable to be protected. It is also stated that petitioner's appointment is a result of manipulation and fraud and does not merit any sympathy. It is also stated that petitioner's continuation was pursuant to interim orders passed by this Court and no equity can be claimed by the petitioner.

4. I have heard Ms. Madhumita Bose, learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 and 2 and Sri Vindhyawashini Kumar, learned counsel for respondent no.4 and have perused the records.

5. Facts as have been brought on record are more or less admitted. Mahashah Visen Laghu Madhyamik Vidyalaya, Tarabganj, Gonda is a recognized junior high school and was taken on the list of aided institution in 1997. At the relevant point of time, 8 posts of Assistant Teachers were sanctioned in the institution which continues to exist even as on date. 8 teachers were already employed in the institution in 1997 and no vacant post existed against which petitioner could be appointed. Petitioner relies upon an order dated 12.9.1997 granting permission for opening of an additional section in the institution. This order is contained in Anenxure-31. The order does not bear any office number and has been issued as a memo. It is recorded in the order that office of Basic Shiksha Adhikari was vacant and one Parshuram, whose substantive post was Assistant Basic Education Officer, was officiating on the post, who is claimed to have allowed opening of an additional section in the institution. It is, however, admitted that no sanction by the competent authority was accorded for creation of post in the institution. The District Basic Education Officer, Gonda, vide its order dated 14.10.1997, however, granted approval to petitioner's appointment and the petitioner claims to have been confirmed after completion of probation on 20.10.1998. The issue as to whether petitioner possesses requisite qualification in terms of the applicable provisions of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978, (hereinafter referred to as the 'Rules of 1978'), and whether the post was advertised has not been dealt with while granting approval, which appears to have been done more as a matter of routine.

6. Record reveals that certain complaints made in the matter of petitioner's appointment to the authorities, which lead to initiation of a brobe in the matter. It appears that the Director Basic Education called for a report in the matter from the educational authorities. The Assistant Director (Basic) of the division is stated to have submitted an enquiry report on 3.8.2000. This enquiry report insofar as the present petitioner is concerned states as under:-

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7. Assistant Director observed that the appointments offered to 15 persons by the then District Basic Education Officer does not appear to be forged. This enquiry report has been heavily relied upon by the petitioner. This report, however, is not convincing inasmuch as it has not dealt with the issue of existence of post against which petitioner could be appointed; whether post was advertised; whether petitioner possesses requisite qualification for such appointment etc. The District Basic Education Officer vide letter dated 7.7.2004 again called for details of post creation, approval for opening a new section as well as educational qualification of the teachers. By a subsequent letter the District Basic Education Officer informed the Principal that details in respect of petitioner and two others have not been sent, and therefore, payment of salary be not released to them. Petitioner claims to have sent a letter to the Headmaster stating that she has already submitted relevant educational records before the authorities. Petitioner also claims that a letter was sent by the Headmaster to the educational authorities whereupon a communication was sent by the District Basic Education Officer, Gonda on 2.11.2004 for release of petitioner's salary but the salary was not resumed to the petitioner. It appears that an order against the petitioner was passed on 11.2.2005 withholding petitioner's salary but the same has not been brought on record of this petition. This order was challenged by the petitioner in Writ Petition No.1488 (SS) of 2005 and the operation of the order dated 11.2.2005 was stayed. The order passed by this Court on 24.2.2005 is extracted hereinafter:-

"Heard Sri R.B. Pandey, for the petitioner and Sri B.Q. Siddiqui, holding brief of Sri Mohd. Ghaus Beg, for opposite party no.2 and the grievance of the petitioners is that they have been working as confirm Assistant Teachers in the Basic School in the district of Gonda since 1997. The genuineness of their documents was tested by the Assistant Director of Education (Basic), Faizabad Region in the year 2000 and a specific order was passed by the Assistant Director of Education (Basic), Faizabad Region on 8.8.2000 giving finding that the documents submitted by the petitioners are genuine and bonafide. A copy of this order is anenxed as annexure-6. Similar exercise was also held in November 04 also and the Basic Shiksha Adhikari Gonda had found the doucments to be in order and the petitioners' salary was released. The petitioners have worked for eight years and they are confirmed in service. According to the learned counsel for the petitioners at the time of confirmation the documents regarding qualification and experience are properly screened and then only an employee is confirmed in service. More than eight years have passed issuance of show cause notice is nothing but simply an attempt to harass the petitioners.

After hearing the learned counsel for the parties and going through the record it is evident that the petitioners have been working since 1997 and they have been confirmed in service vide order dated 20.10.98 with effect from 14.10.98.

Accordingly, the operation and implementation of the order dated 11.2.2005 shall remain stayed. The petitioners shall be allowed to work on their respective posts in their respective institution and be paid their salary (including held up salary) within one month from the date a certified copy of this order is produced before the authority concerned.

Let counter affidavit be filed within six weeks. List thereafter for admission."

8. Pursuant to such order interim order, petitioner continued to draw her salary. Ultimately, the petition came to be disposed of vide following orders passed on 24.7.2013:-

"Petition disposed of vide order of date passed on memo of writ petition no.1578 (SS) of 2005."

The order passed in Writ Petition No.1578 (SS) of 2005 is also reproduced:-

"Heard learned counsel for the petitioners and Sri Vishal Verma and Sri Vindhyawashini Singh for the Basic Shiksha Adhikari.

These are connected writ petitions filed by the petitioners challenging the show cause notice issued by the Basic Shiksha Adhikari.

Dr. L. P. Mishra has raised a legal question that the Basic Shiksha Adhikari can not issue show cause notice "directly" to the Assistant Teachers. He argues that the appointing authority of the Assistant Teachers is the committee of management and not the Basic Shiksha Adhikari, hence any disciplinary action which has to be taken in pursuance of any notice, or any inquiry is to be done by the committee of management, however, with the approval of the Basic Shiksha Adhikari. In this case, the Basic Shiksha Adhikari ought to have made an inquiry or issued any notice to the Manager or the committee of management for any irregularity or deficiency in the administration of appointments etc.

On this legal proposition, the counsel for Basic Shiksha Adhikari has produced the rules knows as Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978. Section 4 of the said Act lays down as under:-

"4. Power to inspect.- (1) The Education Officer may, at any time, for the purpose of this Act, inspect or cause to be inspected any institution or call for such information and records (including registers, books of accounts and vouchers) from its management with regard to the payment of salaries to its teachers or employees or give its management any director for the observance of such canons of financial propriety (including any direction for retrenchment of any teacher or employee or for prohibition of any wasteful expenditure) as he thinks fit.

(2) Where a direction under sub-section (1) is given for retrenchment of any teacher or employee, it shall be complied with, as for as possible, in accordance with the provisions of the Uttar Pradesh Basic Education Act, 1972, and the rules made thereunder, or as the case may be, the conditions of service of such teacher or employee."

A perusal of this section clearly show that the district authorities are definetly vested with the power to inspect to regulate smooth and fair working of the institutions and the employees but he cannot directly intervene or relate with any employee. This being the position the show cause notices are hereby set aside. However, the Basic Shiksha Adhikari will have complete freedom to act in accordance with law and to make inspection or raise any question about any illegal appointment through the Manager or the committee of management.

The petitions are hereby disposed of."

9. The District Basic Education Officer after disposal of the matter by this Court again called upon the Manager of the institution to produce records as serious allegations of fraud had been levelled in making of petitioner's appointment. The matter appears to have remained pending without any further orders passed in the matter. The complainant thereafter appears to have preferred Writ Petition No.5606 (MB) of 2015, which came to be disposed of by the Division Bench on 30.6.2015 vide following orders:-

"Heard learned counsel for the petitioner and the learned Standing Counsel for the respondent-State.

The grievance of the petitioner in the matter of misappropriation of the Government money by the authorities of Basic Education Department Gonda in collusion with Managing Committee of the aided schools, can be more appropriately examined by respondent no.2 i.e. Director of Education (Basic), U.P., Lucknow, at the first instance.

Accordingly, the present writ petition is disposed of by providing that the petitioner may make a representation, ventilating all his grievances, supported by such documents, as may be advised, before respondent no.2 Director of Education (Basic), U.P., Lucknow within four week from today, along with a certified copy of this order. On such representation being made, respondent no.2 shall consider and decide the same, in accordance with law, by means of reasoned speaking order, preferably within two weeks from the date the representation is made, after affording opportunity of hearing to the parties concerned. "

10. It is in furtherance of such directions that persistent communications were sent to the institution concerned requiring relevant records to be produced failing which it's recognition would be withdrawn. It is in the context of such proceedings that ultimately relevant records have been furnished in the matter. An order adverse to the petitioner was passed by the Director of Education (Basic) on 9.11.2015 for taking action for removal/termination in accordance with law. However, without holding an enquiry, an order of termination was passed which again came to be challenged before this Court in Writ Petition No.10721 (SS) of 2016. This petition came to be disposed of vide order dated 16.11.2016, extracted hereinafter:-

"Heard. As far as the challenge to the orders passed by the authorities as a consequence to the order of the Director dated 9.11.2015 is concerned, the issue is no longer res integra and the same has been decided in writ petition No.8268 (SS) of 2016 as under:

"Heard learned counsel for the parties.

The petitioners herein were engaged as Assistant Teachers in the respondent no. 5's institution on 08.10.1997. Their appointments were approved by the Officer holding the charge of the post of B.S.A. on 14.10.1997. Their services are said to have been confirmed on 01.10.1998 as is evident from page 38 to the writ petition. The petitioners were granted the selection grade on 19.11.2007 and 20.11.2007 respectively. One Shri Anil Kumar filed a writ petition before this Court bearing No. 5606(MB) of 2015 wherein on 30.06.2015 the following order was passed:-

"Heard learned counsel for the petitioner and the learned Standing Counsel for the respondent-State.

The grievance of the petitioner in the matter of misappropriation of the Government money by the authorities of Basic Education Department Gonda in collusion with Managing Committee of the aided schools, can be more appropriately examined by respondent no.2 i.e. Director of Education (Basic), U.P., Lucknow, at the first instance.

Accordingly, the present writ petition is disposed of by providing that the petitioner may make a representation, ventilating all his grievances, supported by such documents, as may be advised, before respondent no.2 Director of Education (Basic), U.P., Lucknow within four week from today, along with a certified copy of this order. On such representation being made, respondent no.2 shall consider and decide the same, in accordance with law, by means of reasoned speaking order, preferably within two weeks from the date the representation is made, after affording opportunity of hearing to the parties concerned."

In pursuance to the aforesaid the Director of Education (Basic), U.P., Lucknow is said to have conducted some exercise wherein the Committee of Management of the institution where the petitioners were teaching was heard but admittedly the petitioners were not heard.

However, learned counsel for the Management says that it had issued two letters to the petitioners asking them to produce their documents regarding the qualification and training as possessed by them which they did not do. The Director of Education (Basic), U.P., Lucknow passed an order on 09.11.2015 in respect of various such teachers who according to him had been appointed illegally. He ordered for withholding the payment of salary of such teachers including the petitioners and at the same time issued a direction to the respective Committee of Managements to take action for terminating the services of such teachers as per rules known as U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. This order came to be challenged by the petitioners before this Court by means of Writ Petition No. 2722(SS) of 2016 wherein no interim order was passed but counter affidavit was called for. At that stage the order of termination/ removal had not been passed. Now, in pursuance to the aforesaid order the Committee of Management has passed the order of termination/ removal of the petitioners from service albeit allegedly after issuing a show cause notice to them.

The contention of the petitioners is that a confirmed employee could not have been removed from service without following the procedure prescribed in this regard under Rule 16 read with Rule 5 of the Uttar Pradesh Basic Staff Rules, 1973 i.e. without following the procedure laid down in the Civil Services (Classification, Control and Appeal) Rules as applicable to servants of the U.P. Government as far as possible, which in fact have been substituted by another set of Rules know as U.P. Government Servant (Discipline and Appeal) Rules, 1999.

A specific query was put to the learned counsel for the Committee of Management as to whether any charge sheet was issued to the petitioners who fairly replied that it was not, instead, a show cause notice was issued. Another query was put about conducting of any disciplinary inquiry by fixing date, time and place with intimation to the petitioner, again he fairly admitted that it was not done. This procedure which was required to be followed before removing the petitioners from their services specially as they were confirmed employees.

As far as the allegation that the petitioners did not possess the required training from a recognized institution when they were appointed in the year 1996. Learned counsel for the petitioner submitted that they had been working for the past 20 years and they had not misrepresented or concealed their training certificate which was obtained from the Bhartiya Shiksha Parishad. Therefore, now at this stage of their carrier to remove them from service on this ground is untenable, especially in the manner in which it has been done without affording them any reasonable opportunity to defend.

Learned counsel for the Management and learned counsel for the Basic Education Officer submitted that the essential requirement of their training from a recognized institution was absent, moreover, the appointment letter had not been issued with the permission of the Basic Education Officer rather it had been issued prior to the approval which is absolutely illegal.

Be that as it may, once the Director of Education (Basic), U.P., Lucknow has issued an order on 09.11.2015 for taking action for removal/ termination of their services in terms of the Rules, 1978 and it is not a case where the appointment of the petitioners had been cancelled rather it is a case of removal from services under the provisions referred herein above, therefore, the least that was required is to follow the procedure prescribed in law, this not having been done, the impugned order can not be sustained and the same is, accordingly, quashed.

It is further made clear that this Court has not considered the validity of the earlier order dated 09.11.2015 passed by the Director of Education (Basic), U.P., Lucknow which is the subject matter of another writ petition, therefore, the same shall remain unaffected.

Let the Committee of Management conduct the proceeding afresh apprising the petitioners of the charges against them, thereafter, hold an inquiry and complete the disciplinary proceeding as per the prescribed procedure expeditiously. As a consequence of quashing of the impugned order, the petitioners shall be put back in service, however, subject to the order passed by the Director of Education (Basic), U.P., Lucknow on 09.11.2015.

With the aforesaid observations, the writ petition is disposed of. There shall be no orders as to costs."

The said judgement has also been followed in other writ petitions.

The Committee of Management shall take the proceeding afresh apprising the petitioner of the charges against her. Thereafter hold a enquiry and complete the disciplinary proceedings as per the prescribed procedure expeditiously. As a consequence of quashing of the aforesaid order the petitioner will be put back in service, however, subject to the order passed by the Director of Education (Basic), U.P., Lucknow on 9-11-2015.

It is made clear that this court has not considered the validity of the order of the director dated 9.11.2015 which may be challenged separately by filing the separate writ petition.

The writ petition is disposed of in the aforesaid terms."

11. It is in terms of the liberty so given that the order of termination has been passed, after holding a detailed enquiry in the matter, in which petitioner has been afforded opportunity to defend herself. There is no allegation of denial of opportunity in disciplinary proceedings conducted against the petitioner.

12. From the chronology of events, it is apparent that the appointment offered to the petitioner has remained in cloud from day one. It is admitted on record that there existed 8 sanctioned posts in the institution and all of which were already filled in 1997 when the institution was taken on aid. No additional post was sanctioned. The provisions of The Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978, were applicable. By virtue of section 9 of the Act of 1978, before any post is created in the institution, approval of the competent authority was required. Section 9 reads as under:-

"Approval for posts. - (1) No institution shall create a new post of teacher or other employee, except with the previous approval of the Director or such other officer, as may be empowered by a general or special order in that behalf by the Director.

(2) If any new post is created with the previous approval referred to in sub-section (1), and no appointment is made to such post, within three months the approval shall be deemed to have been withdrawn."

No such approval exists and facts in that regard are admitted. Even the District Basic Education Officer had not granted any sanction for creating an additional post. Petitioner's plea that merely because an additional section was opened, as such, vacancy automatically came into existence cannot be accepted. The manner in which approval was granted to open an additional section, leaves much to be desired. However, even if creation of additional section is presumed, yet, creation of post would not be automatic. The publication of vacancy was otherwise flawed, inasmuch as it was in some local newspaper i.e. "Dainik Nagar" alone that post was published. It is also not clear as to whether the Selection Committee in terms of rule 9 of Rules of 1978 was constituted inasmuch there is nothing to show that any nominee of District Basic Education Officer was present. The procedure followed for selection to the post of Assistant Teacher resulting in appointment of petitioner, therefore, cannot have the approval in law. Such a finding returned in the disciplinary proceedings, in respect of charge so made, is clearly borne out from the records.

13. It would also be appropriate to note that the Rules of 1978 clearly contemplate possessing of minimum qualification for appointment to the post of Assistant Teacher. Rule 4 provides for qualification of Intermediate and a Teachers Training Course certificate recognized by the State Government or the Board, such as HTC, JTC, BTC or CT. Admittedly, petitioner did not possess any of the training certificate recognized in rule 4. The training certificate relied upon by the petitioner is from Bharitya Shiksha Parishad, Lucknow. This training certificate has not been recognized either by the State Government or by the Board. Petitioner in the absence of training qualification required in terms of rule 4 was ineligible to be considered for appointment. It appears that it is for this reason that persistent endeavours made in the equiry proceedings to examine petitioner's educational records and training certificate was met with stiff resistance and it is only after the order was passed by the Division Bench that petitioner's certificate could be examined. The continuance of petitioner for substantially long has been on account of interim protection granted by this Court.

14. Learned counsel for the petitioner has relied upon a judgment of the Apex Court in Bhagwati Prasad vs. Delhi State Mineral Development Corporation, (1990) 1 SCC 361 as well as the Division Bench judgment of this Court in Kalu Ram vs. State of U.P. and another, 2000 (1) AWC 509.

The judgment in Bhagwati Prasad (supra) related to group D post, against which petitioners were appointed on daily wage basis. The Industrial Tribunal directed for framing of a scheme for regularizing services of such workers. A scheme was framed but some of the workers were denied confirmation on the respective post on the ground that they do not possess requisite qualification. It was in this context that the Apex Court observed that essential minimum qualification for the post is a factor to be exercised at the time of initial entry into service and that after continuation for long, such class IV employees ought not to have been removed from service for lack of qualification.

In Kalu Ram (supra), the Division Bench of this Court dealt with a case where after 35 years of satisfactory service, suddenly an order of termination was passed on the ground that diploma possessed by the petitioner was not recognized.

If the facts of present case are analyzed in the context of aforesaid two judgments, it would be apparent that both the judgments, relied upon, by the petitioner's counsel has no applicability. Petitioner's appointment was in cloud from initial stages and it was not after decades that such issue was raised for the first time. The judgment in Bhagwati Prasad (supra) dealt with regularization of class IV employees, who were engaged as workmen, and directions had been issued to regularize such workmen. Unlike it, the petitioner claims appointment to the post of Assistant Teacher for which qualification is prescribed by the rules. In the peculiar facts of the present case where neither vacancy existed nor procedure for appointment was followed and the petitioner lacks eligible qualification, the ratio in Bhagwati Prasad (supra) and Kalu Ram (supra) cannot be pressed so as to grant any relief to the petitioner.

15. In the facts and circumstances of the present case, this Court is of the opinion that petitioner has managed to secure appointment contrary to law and has succeeded in stalling attempts to examine its legality/genuineness. Such continuation for howsoever long would not create any equity in favour of the petitioner. The plea of equity would not be available in a case where initial appointment is a result of manipulation, no vacant post exists, and the petitioner even lacks essential qualification for the post. The argument advanced on behalf of the petitioner, though seems attractive at the first look but must ultimately fail, and rule of law would have to be maintained.

16. Writ petition accordingly fails and is dismissed.

Order Date:- 2.8.2017

Ashok Kr.

(Ashwani Kumar Mishra, J.)