Mohd. Zeeshan Ahmad And Another vs State Of U.P.& 4 Ors.
2017 Latest Caselaw 7694 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 17.8.2017
 
Delivered on 06.12.2017
 

 
Case :- WRIT - A No. - 66902 of 2013
 
Petitioner :- Mohd. Zeeshan Ahmad And Another
 
Respondent :- State Of U.P.& 4 Ors.
 
Counsel for Petitioner :- J.P.Singh,Ashok Khare
 
Counsel for Respondent :- C.S.C.,R.P. Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioners praying for a writ in the nature of certiorari for quashing the order dated 31.10.2012 and the order dated 11.11.2013 passed by District Inspector of Schools, Azamgarh and the Additional Director of Education, Secondary respectively. In so far as they reject the petitioners' claim for salary w.e.f. their respective dates of appointments / joining. A further prayer for a writ in the nature of mandamus commanding the respondents to ensure that appropriate orders are passed sanctioning payment of salary to the petitioner w.e.f. 7.10.2004 and to treat them as regularly appointed Assistant Teachers from the said date and to award all consequential benefits accordingly, has also been made.

2. The facts relevant for decision of the controversy as given in the writ petition are that Ashrafiya Inter College, District Azamgarh is a recognised and aided Intermediate College and a minority institution covered by Section 16-FF of the Intermediate Education Act, 1921.

3. On 17.3.2004, two Assistant Teachers of the College, namely Hari Lal Yadav and Indrajeet Pandey were promoted as Lecturers in Hindi and Sanskrit respectively. These two posts were under the 50% promotion quota. On 11.9.2004, two posts of L.T. Grade Teachers and one post of Lecturer were advertised in the newspapers and the petitioners applied for the post of Assistant Teacher in L.T. Grade and one Badruddin applied for the post of Lecturer. A Selection Committee was constituted by the Institution concerned and the petitioners were selected and recommended for the post of Assistant Teachers, and Badruddin for the post of Lecturer on 22.9.2004, and papers were sent for approval of their selection to the office of the District Inspector of Schools, Azamgarh, which were received in his office on 18.11.2004. Approval however was not granted and the petitioners along with Badruddin filed Writ Petition No. 20176 of 2005, which was disposed of on 21.3.2005 directing the District Inspector of Schools to look into the matter and pass appropriate orders.

4. The orders passed by this Court were not complied with and a Contempt Petition was filed. During the pendency of the Contempt Petition, the District Inspector of Schools passed an order on 15/16.5.2005, disapproving the petitioner's selection on the ground that the vacancies in L.T. Grade should have been advertised only after approval was given to the promotion of two L.T. Grade Teachers - Hari Lal Yadav and Indrajeet Pandey as Lecturers.

5. Aggrieved by the order dated 15/16.5.2005 another writ petition was filed by the petitioners, namely Writ Petition No. 65965 of 2006, but the High Court dismissed the aforesaid writ petition on the ground of availability of alternative remedy under sub section 6 of Section 16-FF of the Act, 1921.

6. Accordingly, an appeal was filed by the petitioners before the Joint Director of Education, Azamgarh Region, Azamgarh and on 24.6.2006, the Joint Director of Education disapproved the selection on the ground that on the date the selection was made there were no clear vacancies.

7. Challenging the order dated 24.6.2006, the petitioners and Badruddin filed Writ-A No. 69099 of 2006. The Committee of Management of the College concerned also filed Writ Petition No. 39227 of 2006 challenging the order of the Joint Director of Education dated 24.6.2006. Both writ petitions were heard together and decided by a common judgment and order dated 10.8.2011. The Joint Director of Education was directed by this Court to pass a fresh order taking note of the fact that Zeeshan Ahmad was appointed after vacancy was created due to promotion of Hari Lal Yadav, Assistant Teacher in L.T. Grade as Lecturer in Sanskrit and that the promotion of Hari Lal Yadav was given financial approval by the District Inspector of Schools, Azamgarh by order dated 9/10.6.2008.

8. Similarly, with regard to petitioner no.2 - Mohd Israr, it was found that financial approval of the promotion of Indrajeet Pandey as Lecturer in Hindi was granted by the District Inspector of Schools on 4.7.2009.

9. This Court observed thus:-

"In the facts, as stated by the petitioners and the documents annexed along with the supplementary affidavit, the reasons for not granting their approval having become non-existence today, they would be entitled to be granted financial approval and payment of salary from the date the vacancy occurred or the date from which they are working provided the date of working is subsequent to the date of vacancy.

(emphasis supplied)

To the aforesaid extent, both the aforesaid writ petitions succeed and are partly allowed. The Joint Director of Education (Secondary), Azamgarh Region, Azamgarh is directed to pass fresh order in the matter relating to Badruddin - petitioner no.1, Israr - petitioner no.2 and Zeeshan - petitioner no.4 only in the light of the observations made above within a period of one month from the date of production of certified copy of the order provided the facts, as stated above in this order are found to be correct and duly verified, the salary to the three teachers may be granted approval from the date of working provided there were vacancies, as claimed."

(emphasis supplied)

10. It is clear from the order dated 10.8.2011 that this Court directed for grant of financial approval and payment of salary from the date the vacancy occurred or the date from which they are working provided the date of working is subsequent to the date of vacancy.

11. The Joint Director of Education on 2.11.2011 recommended for payment of salary to the petitioners in accordance with law and left it open for the District Inspector of Schools to examine the availability of the post / vacancy in the college.

12. The District Inspector of Schools, Azamgarh passed an order on 29.12.2011 sanctioning payment of salary to the petitioners w.e.f. a date of his order i.e. w.e.f. 29.12.2011.

13. The order passed by the Joint Director of Education and the District Inspector of Schools were alleged by the petitioners to be in contemptuous disregard of this Court's order dated 14.8.2011, and therefore, a Contempt Petition was filed, namely Contempt Petition No. 2878 of 2012.

14. During the pendency of Contempt Petition, the then District Inspector of Schools passed another order dated 31.10.2012, sanctioning payment of salary to the petitioners - Zeeshan Ahmad w.e.f. 10.6.2008 and Mohd Israr w.e.f. 4.7.2009. On 11.11.2013, the Additional Director of Education (Secondary) also sanctioned budget for payment of arrears of salary to the petitioners w.e.f. 10.6.2008 and 4.7.2009 respectively.

15. The petitioners have challenged the orders passed by the District Inspector of Schools dated 31.10.2012 and 11.11.2013 on the ground that under various provisions of the Intermediate Education Act, the promotion of Hari Lal Yadav and Indrajeet Pandey became effective after three weeks from the date of sending of their recommendations for promotion by the Selection Committee / Committee of Management to the District Inspector of Schools under the deeming clause in Regulation 6 of Chapter II of the Regulations attached to the Intermediate Education Act, 1921.

16. It has been argued that under the Regulation 6, it is provided that in case a vacancy occurs in Lecturer Grade or L.T. Grade, then the senior most Teacher, who has rendered a minimum of five years of continuous substantive service in the next lower grade may be considered for promotion by the Committee of Management subject to the condition that such Teacher possesses the minimum educational qualification required for the post.

17. Under Regulation 6(5), the Manager shall send the papers with regard to recommendation for such promotion within one week of the proposal to the District Inspector of Schools giving details of whether the post belonged to promotion quota and also with details with regard to reservation, and educational qualification and selection process prepared by the Committee of Management.

18. It has further been argued that under Regulation 6(6), it is provided that the District Inspector of Schools shall inform the Manager of the Institution of his decision on the proposal / recommendation for promotion within a period of three weeks of receipt of such papers. In case the District Inspector of Schools fails to inform the Management regarding its recommendation within this period of three weeks, then it shall be deemed that promotion as proposed by the Committee of Management has been approved by the District Inspector of Schools.

19. It is the case of the petitioners that Hari Lal Yadav and Indrajeet Pandey were promoted as Lecturers in Hindi and Sanskrit on 17.3.2004 and papers were sent by the Committee of Management within time to the District Inspector of Schools and the District Inspector of Schools did not communicate his disapproval within three weeks thereafter, hence there should be deemed approval of the promotion of Hari Lal Yadav and Indrajeet Pandey. On such deemed approval, two substantive vacancies occurred on the post of Assistant Teachers, L.T. Grade immediately thereafter, and therefore, the said posts were advertised in September 2004 by the Committee of Management and selection held appointing the petitioners.

20. Even with respect to the petitioners, it has been further argued that under Section 16-FF, the Selection Committee has to be constituted by the Committee of Management itself and selection had to be made thereafter and proposal was to be sent for approval of the District Inspector of Schools. Although no person selected would be appointed unless approval is granted by the District Inspector of Schools, it has further been provided under Section 16-FF(iv) that the District Inspector of Schools shall not disapprove of the selection if the persons selected possessed the minimum educational qualification prescribed and was otherwise eligible.

21. Both the petitioners possessed the minimum educational qualification for the appointment as L.T. Grade Teachers and they were also recommended under Section 16-FF by the Committee of Management. As such, the District Inspector of Schools could not have refused approval of their appointment. It was because of the delay being caused in granting of such approval by the District Inspector of Schools that three writ petitions had to be filed by the petitioners and a Contempt Petition also.

22. The counsel for the petitioners has argued that this Court in its judgment and order dated 10.8.2011 had directed that if the petitioner's appointment were found in accordance with law their salary may be granted to them from the date of working provided there were vacancies. The vacancies occurred as soon as the period of three weeks elapsed from the date of receipt of papers recommending promotion of Hari Lal Yadav and Indrajeet Pandey in the office of the District Inspector of Schools. Under the deeming provision under Regulations 6(6) of Chapter II of the Intermediate Education Act, 1921, the approval was sought in March 2004 itself for promotion of Hari Lal Yadav and Indrajeet Pandey by the Management. Such approval having been sought, if given on a latter date will relate back to the date of such promotion, and the resultant vacancies would be deemed to have arisen in April 2004 itself. These promotions were later on approved on 10.6.2008 and 4.7.2009 respectively. Such approval will therefore relate back to the date of promotion. The Joint Director of Education or the District Inspector of Schools therefore could not have determined the date of resultant vacancies arbitrarily as having arisen only on the date when actual approval to such promotions were granted i.e. w.e.f. 10.6.2008 and 4.7.2009 respectively.

23. It has been argued by Sri J.P. Singh that nothing adverse was communicated regarding approval or disapproval of the promotion of Hari Lal Yadav and Indrajeet Pandey within time as envisaged in the Regulations and the Committee of Management waited for five months thereafter and held selection only in September 2004 on the resultant two vacancies. The papers were sent to the office of the District Inspector of Schools for approval of appointment of the petitioners on 9.10.2004. The petitioners had to approach this Court repeatedly only because of intransigence of the Educational Authorities.

24. The counsel for the petitioners has read out the operative portion of the judgment and order dated 10.08.2011 wherein this Court has observed that not granting approval to the petitioners' appointment by the authorities cannot be countenanced as vacancies on the post on which the petitioners were selected, had arisen due to promotion in 2004, such promotion was also approved in 2008 - 2009. This Court had observed that the reasons for not granting approval have become non-existent because approval has now been granted to the promotion of Hari Lal Yadav and Indrajeet Pandey subsequently by the authorities themselves. The only question of entitlement to payment of salary has to be considered by the authorities now. This question should also be considered and appropriate order be passed whether salary shall be payable to the petitioners from the date the vacancies had occurred or from the date from which the petitioners were found working.

25. It is the case of the petitioners as argued by their counsel that in almost similar circumstances this Court passed an order on 20.04.2004 in Writ Petition No. 15780 of 2004: Zeeshan Alam and another Vs. State of U.P. and others (a true copy of the said order has been filed as Annexure - 9 to the writ petition).

26. In the case of Zeeshan Alam (supra), the vacancies had arisen due to promotion of two senior-most teachers in L.T. Grade as Lecturers. Selections were held on the resultant vacancies in L.T. Grade and papers were forwarded for approval to the District Inspector of Schools, Azamgarh, who had disapproved the selection on the ground that before he granted approval to the promotion of LT Grade Teachers as Lecturers, the selection and appointment could not have been made on the resultant vacancies. Before approval was granted, it cannot be said that there were any vacancies in L.T. Grade. This Court relied upon two judgments rendered by the Hon'ble Supreme Court in the case of U.P. Avas Evam Vikas Parishad Vs. Friends Cooperative Housing Society Limited: 1993 (Suppl.) 3 SCC 456 and LIC of India Vs. Escorts Limited: 1986 (1) SCC 264 that once approval was granted subsequently, all previous acts done or actions taken in anticipation of approval get validated. In Zeeshan Alam (supra) approval for promotion of L.T. Grade teachers as Lecturers was granted subsequently but such approval would validate all actions taken by the Committee of Management in anticipation of such approval. Hence, approval could not have been refused only on the ground that vacancies arose only after approval of promotions.

27. The learned counsel for the petitioners has also relied upon a judgment rendered by a Division Bench of this Court in Mahfooz Ahmad Khan Vs. State of U.P. and others (Special Appeal No. 914 of 2010, decided on 2nd July, 2010) reported in 2010 (4) ESC 2622 wherein under similar circumstances a Division Bench of this Court considered the deeming provision under Regulation - 17 (g) regarding filling up of a vacancy of Head of the Institution or Teacher by direct recruitment in any recognized minority institution.

28. It is the case of the petitioners that papers for grant of approval to their selection and appointment were sent by the Committee of Management immediately after such selections were held and in terms of Regulation 17 (g) orders should have been passed by the District Inspector of Schools within one month from the date of receipt of these papers. It has not been disputed that papers were received by the office of the District Inspector of Schools on 18.11.2004 as such is submission made in paragraph -6 of the counter affidavit. If the papers regarding selection and appointment of the petitioners as Assistant Teachers were made available by the Managing Committee to the office of the District Inspector of Schools on 18.11.2004, then the orders regarding their approval or disapproval could have been passed within one month from the date of receiving of such papers, which was not done.

29. It has been argued that in view of what has been said herein above by the learned counsel for the petitioners, the stand taken by the State-Respondents in their counter affidavit in paragraphs 16 & 18 as argued by the learned Standing Counsel that approval was granted to the promotion of LT Grade Teachers to the posts of Lecturers later on, and selections of the petitioners as Assistant Teachers were made by the Committee of Management, and therefore, it cannot be said that the vacancies had arisen in accordance with law in 2004 seems logical. Hence the District Inspector of Schools, Azamgarh having granted approval to the promotion of Shri Heera Lal Yadav and Shri Indrajeet Pandey on 10.06.2008 and 04.07.2009 respectively, the posts of Assistant Teachers would be said to have fallen vacant only on 10.06.2008 and 04.07.2009.

30. This Court has already in its judgment and order dated 10.08.2011 given liberty to the authorities to consider the grant of approval for payment of salary to the petitioners "from the date when the vacancy occurred, or the date from which they were working provided the date of working is subsequent to the date of vacancy". The petitioners naturally are relying upon this judgment dated 10.08.2011 and they have not challenged this judgment. However, it has been left open to the authorities to take a decision with regard to grant of financial approval for payment of salary from the date vacancies occurred i.e. in 2008-2009, or from the date when they were working "provided the date of working is subsequent to the date of vacancy".

31. Hence, the petitioners may have worked since 2004 i.e. the date of their joining; but since the Court has limited the discretion for grant of approval for payment of salary only from the date of working which is subsequent to the date of vacancy, the petitioners cannot be given salary for a period prior to the vacancies arising in the institution in question.

32. The questions before this Court which would arise for consideration would be as to from which date vacancies on the two posts of Assistant Teachers, L.T. Grade consequent to promotion of Hari Lal Yadav and Indrajeet Pandey could be deemed to have arisen?

33. The admitted position on facts is that the proposal for promotion of Hari Lal Yadav and Indrajeet Pandey sent by the Committee of Management was received in the office of the District Inspector of Schools on 18.11.2004 alone, if three weeks as provided under Regulations 6(6) of Chapter II of the Intermediate Education Act is calculated from the date of receipt of such proposal, it could come to around first week of December 2004, but the petitioners have been given joining in September 2004 itself.

34. Section 16-FF provides that no Teacher selected by the Committee of Management shall be appointed unless such proposal / selection is approved by the District Inspector of Schools concerned. The appointments of the Teachers were made before such approval was actually granted w.e.f. 10.6.2008 and 4.7.2009 by order dated 31.10.2012 passed by the District Inspector of Schools. It is this order which is under challenge before this Court, and this Court has to consider the deeming provision given in Regulation 6(6) of Chapter II of the Regulations attached to Intermediate Education Act, 1921, as well as the provision in the Section itself under which the petitioners have been appointed i.e. Section 16-FF of the Intermediate Education Act.

35. It is settled law that Regulations framed under an Act are lower in hierarchy and subsidiary in nature. In so far as provisions of the Act itself are concerned, the Parent Act will always have primacy over Regulations framed under it. Under Section 16-FF(iii), it has been so provided:-

"No person selected under this section shall be appointed, unless.--

(a) in the case of the Head of an Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and

(b) in the case of a teacher such proposal has been approved by the Inspector."

36. The provisions under Section 16-FF cannot be rendered otiose or redundant by giving the Regulations more importance that the parent Act itself.

37. Section 16-FF relates to appointments generally to be made by Committee of Management and even applies to Minority Institution, and does not refer specifically to appointment by promotion or appointment by direct recruitment.

38. It is settled law that appointments can be made by way of promotion or by direct recruitment, or even by transfer, and the word "appointment" is the genus and promotions and recruitments are species.

39. Appointment can be of various kinds, either by promotion or by direct recruitment or by transfer and therefore, if the Act under Section 16-FF provides that no person selected under Section 16-FF shall be appointed unless the proposal by the Selection Committee / Committee of Management is approved by either Regional Deputy Director of Education or District Inspector of Schools, as the case may be, then it was incumbent upon the Committee of Management of the Institution concerned to first take approval of promotion of Hari Lal Yadav and Indrajeet Pandey allegedly made by it in March 2004.

40. The petitioners have filed evidence to the effect that Hari Lal Yadav and Indrajeet Pandey were the two senior most L.T. Grade Teachers and enjoying senior pay scale of L.T. Grade, which was more than the pay admissible to them, as newly promoted Lecturers, and have tried to meet out one of the grounds for rejection of the case of the petitioners by the District Inspector of Schools in the order impugned dated 31.10.2012, wherein he has mentioned that Hari Lal Yadav and Indrajeet Pandey continued to draw salary of the post of L.T. Grade Teacher till 10.7.2008 and 4.7.2009 respectively, and granting financial approval to the petitioners selection and appointment by the Committee of Management w.e.f. from a back date would result in double payment being made to two persons for one sanctioned post of L.T. Grade Teacher.

41. Although, the Committee of Management - the respondent no. 5 has filed its counter affidavit, it has not come out specifically as to since when Hari Lal Yadav and Indrajeet Pandey have been given the salary of the post of Lecturer, but it has supported the petitioners' contention that Hari Lal Yadav and Indrajeet Pandey were both getting more salary as senior most Assistant Teachers in L.T. Grade before their promotion as Lecturer Hindi and Sanskrit respectively.

42. As per the financial Rules governing such cases, an employee who is getting more salary at the time of his promotion to a post on the basis of continuous working in the feeder cadre is entitled for pay protection and he shall be given his pay and other allowances on the same level as he was getting immediately before his promotion, till such time that he reaches such level as other colleagues and then increments become due to him, as are admissible to similarly placed employees of the promoted post.

43. Admittedly, Hari Lal Yadav and Indrajeet Pandey continued to get the salary of Assistant Teachers, L.T. Grade till financial approval was given to their promotion w.e.f. 10.6.2008 and 4.7.2009 respectively. Giving of salary to the petitioners of Assistant Teachers, L.T. Grade w.e.f. a back date would entail a financial irregularity and this Court cannot issue a mandamus to the Executive Authorities to act against the provisions of law.

44. The Hon'ble Supreme Court in the case of Lt. Governor Union Territory of Himachal Pradesh Vs. M/s Nemi Chand Hemraj 1977 (6) SCC 120 has held that no mandamus can be issued against the provisions of law.

45. It has also been settled by this Court in its judgment rendered in Jagdish Singh Vs. State of U.P. 2006 UPLBEC 1851 the "prior approval" of selection and appointment proposed by the Committee of Management means approval after selection but before appointment letter is issued to a candidate.

46. Hence, in view of the above discussion and provisions of the Act itself and settled position in law the prayer made by the petitioners for payment of salary to them from September 2004 cannot be granted. The orders impugned in so far as they grant salary to the petitioners subsequent to resultant vacancy being created in the L.T. Grade, warrant no interference.

47. The writ petition is dismissed. No order as to costs.

48. It would however be open for the petitioners to seek payment of salary from the Committee of management as it had taken teaching work from the petitioners since September 2004 till 10.6.2008 and 4.7.2009 respectively by approaching the civil court of competent jurisdiction in the matter.

Order Date :- 06.12.2017

Arif