Arvind Kumar Singh vs District Inspector Of ...
2017 Latest Caselaw 4177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 17
 

 
Case :- WRIT - A No. - 41956 of 2017
 
Petitioner :- Arvind Kumar Singh
 
Respondent :- District Inspector Of Schools,Jaunpur And 2 Others
 
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner claims that he has been selected on the post of assistant teacher in Janta Uchatar Madhyamik Vidyalaya Jeerakhpur, Baraipar, Jaunpur ( for short "the College") which is a recognised and aided institution. This writ petition is directed against the order dated 30.6.2017 passed by the District Inspector of Schools, Jaunpur, whereby he has rejected the claim of the petitioner for payment of salary.

Essential facts are that the Janta Uchatar Madhyamik Vidyalaya Jeerakhpur, Baraipar, Jaunpur receives financial aid from the

State Government and is governed by the provisions of U.P. Intermediate Education Act,1921, U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 and the U.P. Secondary Education (Services Selection Boards), Act, 1982.

In the college, there are 11 sanctioned posts of assistant teacher. A regular incumbent on the said post namely Prakash Mishra retired on 30.6.2015, hence a vacancy arose on the post of Assitant Teacher. Management of the College sent requisition to the U.P. Secondary Education Service Selection Board (for short "the Board") but no regular selection has been made, hence the post remained vacant. The committee of management on 12.7.2015 passed a resolution for making selection against the said post and issued advertisement in two daily newspapers " Aaj" & "Jan Sandesh Times" on 10.1.2016 inviting applications from the eligible candidates against the said vacancy. The selection committee found the petitioner suitable and selected him. The committee of management in its resolution dated 7.2.2016 accepted recommendation of the selection committee and submitted the requisite papers to the DIOS for his approval.

When no decision was taken by the District Inspector of Schools, the Committee of Management preferred a Writ Petition No. 20445 of 2016 for issuance of necessary directions to the DIOS. This Court on 5.5.2016 while disposing of the writ petition, issued a direction to the DIOS to take appropriate decision in the matter in accordance with law.

By the impugned order, the DIOS has turned down the request of the Committee of Management to accord approval to appointment of the petitioner only on the ground that after 25.1.1999 the State Govt. has rescinded all Removal of Difficulties Orders, the Committee of Management does not have any authority/power to make any kind of appointment.

The learned counsel for the petitioner submits that view taken by the District Inspector of Schools is contrary to law laid down by the Full Bench in the case of Santosh Kumar Singh Vs. State of U.P. and others1. He next submits that the DIOS is not justified in ignoring the law laid down by this Court which is binding upon him. He further submits that the order is non-speaking and without considering the matter in proper perspective. He also submits that order shows that it suffers from non-application of mind and no reason has been assigned by him for reaching the conclusion which he has recorded in the impugned order.

I have heard the learned counsel for the petitioner and learned Standing Counsel.

In view of the facts that only question of law is involved, the parties are agreed that the matter be disposed of finally in terms of the Rules of the Court.

In the college it is stated that one post is lying vacant since 30.6.2015. The requisition was sent by the institution through District Inspector of Schools on 25.5.2015 but the U.P. Secondary Education Service Selection Board has failed to make any selection against the said vacancy. The Committee of Management took a resolution on 3.10.2015 to both the said post in view of the interest of the students whose studies were effected in absence of the teacher in the institution. From the record it appears that the post was advertised in two news papers and after completing the procedure of the recruitment papers were sent to the office of District Inspector of Schools for approval.

No decision was taken by the District Inspector of Schools, the petitioner preferred a Writ Petition No. 20455 of 2016 for a direction upon the DIOS to decide the matter. This Court while disposing of the writ petition issued a direction to the District Inspector of Schools to pass appropriate order in the matter of grant of financial approval to the petitioner in accordance with law.

In compliance thereof the impugned order has came to be passed, wherein the District Inspector of Schools has rejected the claim of the petitioner only on the ground that after 25.1.1999 all the Removal of Difficulties Order has been rescinded, hence the appointment of the petitioner is contrary to the statutory provisions of U.P. Secondary Education Service Selection Board, hence the representation has been rejected.

The State Government vide notification dated 25.1.1999 has rescinded all Removal of Difficulties Orders, hence the Committee of Management had no power to make any appointment either on substantive post or against the short-term vacancy. The said issue fell for consideration before a Division Bench in Daya Shankar Mishra vs. DIOS and others2. In Daya Shankar Mishra (supra) the issue was raised that Section 16 of 1982 Act provides that notwithstanding anything is contrary in 1921 Act and regulations made thereunder shall be made by the Committee of Management only on the recommendation of the Board. Later a Division Bench has referred the matter to the Full Bench to decide the same issue.

Before the Full Bench in Santosh Kumar Singh (supra), the following issues were referred for decision :

"(a). Whether even after the rescission of Removal of Difficulties Orders under Section 33-E of the Uttar Pradesh Secondary Education Services Selection Board Act, 19821 (U P Act No 5 of 1982), with effect from 25 January 1999, the Committee of Management retains the power to make ad-hoc appointment against short term vacancies only because it had published an advertisement for the purpose prior to 25 January 1999;

(b) Whether on enforcement of Section 33-E of the Act rescinding the Removal of Difficulties Orders issued earlier, the Committee of Management has lost all powers to make ad-hoc appointment against short term vacancies;

(c) Whether under Section 16-E of the Intermediate Education Act 19212, there is a power with the Committee of Management to make ad-hoc appointment against short term vacancies and if so then for what period; and

(d) Whether the Division Bench in the case of Subhash Chandra Tripathi Vs State of U P, Writ-A No. 70721 of 2010, decided on 14 July,2014, has laid down the correct law. "

The Full Bench has answered the aforesaid reference in the following terms:

(a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January 1999 by the publication of an advertisement, would continue to be preserved;

(b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999;

(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and

(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra)."

In view of the above, it cannot be said that the Committee of Management has no power to make any adhoc appointment after 25.1.1999. In the impugned order, the DIOS has rejected claim of the petitioner only on the ground that after rescission of the Removal of Difficulties Orders, after 25.1.1999 the committee of management had no power. Thus, the said ground is liable to be set aside.

It is surprising that DIOS who are senior officers and have a pivotal role in dealing with the affairs of Intermediate Colleges under the Intermediate Education Act and Payment of Salaries Act, are totally oblivious of the law laid down by the Court. The Full Bench has affirmed the view taken in Subash Chandra Tripathi (supra) and Daya Shanker Mishra (supra) which were delivered in 2011.

In M/s. East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta3, the Supreme Court has held that although in the Constitution there is no provision like Art. 141 which lays down that judgments of the Supreme Court are binding on all Court and authorities, but there is no corresponding provision like Art. 141 in respect of the judgments of High Court. But by judicial order the Supreme Court has extended that power to all High Courts and held that for the States, judgments of the High Court are binding on all courts/tribunals and all administrative authorities. Relevant part of the judgment of Supreme Court, reads thus:

"29. ....The division Bench of the High Court held that a contravention of a condition imposed by a licence issued under the Act is not an offence under S. 5 of the Act. This raises the question whether an administrative tribunal can ignore the law declared by the highest court in the State & initiate proceedings in direct violation of the law so declared. Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it..... We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction."

The judgment in the case of Santosh Kumar Singh (supra) has not been referred by the DIOS in his order. A large number of writ petitions are filed in this Court challenging the orders of DIOS in the State on similar grounds. The DIOS and educational authorities are assisted by a battery of lawyers and they can take legal opinion in the case if they have any doubt or confusion about the law laid down by the High Court. In several cases though reference of judgment in Santosh Kumar Singh (supra) has been made while remitting the matters back to the authorities to consider the case in the light of said law but inspite of said direction, in most of the cases the DIOS ignore the law so laid down and reiterate the same stand that after 25.1.1999 the Committee of management has no power to make appointment on adhoc basis. This kind of adamant attitude of the educational authorities needs to be deprecated as they generate litigation, wasting precious time of the Court.

Relevant it would be to mention that a Division Bench of this Court in Abhishek Tripathi (Supra), has overruled the judgment in Sanjay Singh case (supra) wherein it was held that a candidate selected by the committee of management under section 16-E shall continue till regularly selected candidate joins the post. The order of Division Bench in Abhishek Tripathi (supra) was challenged in Supreme Court in Special Leave to Appeal ( C)........ CC No. 13272 of 2016 on 22.8.2016. The Supreme Court has passed the following order :-

"Upon hearing the counsel the Court made the following order

Permission to file special leave petitions is granted.

Delay condoned.

Leave granted

There shall be stay of operation of the impugned judgement until further orders."

Regard being had to the fact that the judgement of Full Bench in Santosh Kumar (supra) is final, hence it is binding on the respondents. Moreover in Abhishek Tripathi's judgement this Court has not doubted correctness of Santosh Kumar (FB) judgement.

Upon reading of the judgments in Sanjay Kumar, Daya Shanker, Subhash Kumar and Santosh Kumar Singh (supra), I find that there is common thread in all those cases that after rescinding the difficulties of the removal order no appointment of the teachers can be made on ad-hoc basis under the provisions of the Act, 1982. Hence the provisions under the U.P. Intermediate Education Act, 1921 which are now not inconsistent to the Act 1982 can be utilised for ad-hoc appointments. Even after enactment of the Act 1982, the legislator has not deleted Section 16E and similar other provisions which deal with selection committee, process of recruitment for ad-hoc/temporary appointments ect. provided under the Act, 1921. The only dispute was regarding period of continuance of ad-hoc appointee. The power of Committee of Management to make appointment on ad-hoc basis was not in issue. In the event the managements are not allowed to make ad-hoc/temporary appointments of teachers in their institutions, the studies of students would be adversely affected as Selection Board for multiple reasons is unable to make selection within a reasonable time and takes considerable long period to complete the selection process.

Regard being had to the fact that Section 18 was earlier amended and managements were divested of the power of making appointment on ad-hoc basis. Later, against short term vacancies also they do not have power after 25.1.1999. But the State Government failed to take remedial steps to avoid loss of studies in recognised institutions due to dearth of teachers. The Full Bench decision in Santosh Kumar (supra) has tried to fill that gap by laying down the law that committee of management in the absence of any power under Act no. 5 of 1982, can take recourse to Section 16E (ii) of the U.P. Intermediate Education Act.

The perusal of the impugned order indicates that the District Inspector of Schools has not given any reason except that the removal of Difficulties Order has been rescinded, therefore management has not power to make appointment. He has not even referred to the decision of Full Bench despite the fact that it was brought to his knowledge by the petitioner. Even otherwise it is not believable that the D.I.O.S. is totally obvious of the law laid down in Daya Shankar (supra) which was delivered more than 6 years back. The District Inspector of Schools has passed the order impugned in a casual way without due regard to the law, in spite of the fact that this Court in its order dated 5.5.2016 has directed him to consider the cause of the petitioner in accordance with law.

For all the reasons mentioned above, I find that the order of District Inspector of Schools is unsustainable and is liable to be set aside. Accordingly, the matter is remitted to the DIOS to consider the matter afresh and pass appropriate order within six weeks from the date of receipt of the order in the light of the Full Bench in Santosh Kumar Singh (supra) case.

This Court in the case of Mohd. Tariq and Another Vs. State of U.P. And 3 Others4 had occasion to consider similar casual approach of D.I.O.S. In that case also D.I.S.O. Rejected the claim of the petitioner ignoring the law laid down by the Court in long line of decisions. The conduct of D.I.O.S. was deprecated by the Court in following terms :-

"...a duty was cast upon the District Inspector of Schools to bestow his serious consideration on the issue to comply the order of the Court in letter and spirit. The District Inspector of Schools has completely failed to exercise his power with due care and deference to the order of the Court. Such casual approach generates unnecessary litigation which wastes precious judicial time and public exchequer. The Supreme Court in the case of Central Cooperative Consumers' Store Ltd. Through its General Manager v. Labour Court, H.P. At Shimla and another5 has taken judicial notice of the adamant attitude adopted by the bureaucrats which results in the wastage of precious judicial time."

Applying the said reasoning to the facts of present case the cost of Rs. 2500/- is imposed upon D.I.O.S. The cost shall be deposited in the High Court Legal Services Committee, Allahabad within two months.

The writ petition stands allowed.

Order Date :- 11.9.2017/SNT

Faridul