Smt. Abha Sharma vs State Of U.P. And 3 Others
2017 Latest Caselaw 4678 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 18
 
Case :- WRIT - A No. - 30603 of 2014
 
Petitioner :- Smt. Abha Sharma
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Yadvendra Pandey,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,A.K.Ojha,Alok Dwivedi,Amit Saxena,Indra Raj Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

Heard Sri Radha Kant Ojha, learned senior counsel assisted by Sri Yadvendra Pandey, counsel for the petitioner, Sri P.N. Saxena, who has put in appearance on behalf of respondent no.4 and Sri V.K. Singh, learned senior counsel assisted by Sri Alok Dwivedi for the intervener.

The petitioner is aggrieved by an order dated 23.5.2014 by which the case of the petitioner has been considered in compliance of the order dated 30.1.2013 in Writ Petition No. 2515 of 1993 and it has been communicated to the Committee of Management that the earlier order passed by the District Inspector of Schools dated 7.6.2013, by which the then District Inspector of Schools had allowed payment of salary to be made to the petitioner upto February 2014 has been cancelled.

From the facts as evident, from the argument of Sri R.K. Ojha, learned senior counsel, it has come to the notice of this Court that the petitioner had earlier filed Writ-A No. 2515 of 1993 (Smt. Abha Sharma Vs. District Inspector of Schools, Agra & others), wherein the petitioner had prayed for quashing the recommendation of the District Inspector of Schools, Agra dated 16.12.1992, by which it was proposed to appoint Raj Kumar as a Teacher selected by the Committee constituted under Section 18 of the U.P. Secondary Education Selection Board Act, 1982 (herein after referred to as the Act of 1982). A further prayer was made in the aforesaid writ petition for a direction to the respondents not to interfere with the petitioner's working as the Lecturer.

The grounds taken in the aforesaid writ petition as is evident from the record, were that the petitioner was initially appointed as ad-hoc Teacher by the Committee of Management in a substantive vacancy arising out of the death of one Ramesh Chandra Sharma, who expired on 14.10.1990. The petitioner had continued on the basis of appointment letter dated 23.2.1991 by the Committee of Management. Later on Selection Committee constituted under Section 18 of the Act of 1982 as it their existed, selected one Raj Kumar as Teacher and the District Inspector of Schools made a recommendation to the Committee of Management on 16.12.1992 to give appointment to said selected candidate, Raj Kumar.

When the Writ Petition No. 2515 of 1993 was filed initially, an interim order was granted on the basis of which the petitioner continued. This writ petition was dismissed as infructuous on 17.4.2000, and a recall application had been filed thereafter, which was allowed by this Court. While allowing the recall application, this Court heard the matter on merits and found that the petitioner had been appointed as ad-hoc Teacher in a substantive vacancy by the Committee of Management. This ad-hoc appointment could not have been made in a substantive vacancy without following paragraph 5 of the First Removal of Difficulties Order, 1981 as held by the Full Bench of this Court in the case of Radha Raizada Vs. V.D.G.I.C. & others reported in 1994 (3) UPLBEC 1551. Since the applications from suitable candidates for appointment as ad-hoc Teachers were not called for by the District Inspector of Schools, from the local Employment Exchange and by making advertisement in two widely circulated newspapers and the Committee of Management had on its own selected the petitioner, her appointment was found to be void ab-initio.

This Court had further observed that the petitioner could not challenge the recommendations of the District Inspector of Schools, Agra dated 16.12.1992, recommending the appointment of Raj Kumar, who was the selected candidate, inasmuch as the appointment of the petitioner itself was illegal. Thereafter, the petition was dismissed.

However, this Court also observed that it is open for the petitioner to seek her regularisation under the provisions of the Act. "In case if any such representation is made by the petitioner for regularisation of his service, the same may be considered by the Authority concerned strictly in accordance with law."

Simultaneously  while dismissing the writ petition and granting this liberty to the petitioner, this Court also instituted an enquiry into continued payment of salary to the petitioner after dismissal of the writ petition initially on 17.4.2000, which enquiry was to be conducted by the Principal Secretary, Secondary Education, U.P., Lucknow to determine the responsibility of Officers involved in such illegal payment being made to the petitioner.

It is the case of the petitioner that the regularisation of the petitioner was not considered because the petitioner had already been regularised in the year 1994 by the District Inspector of Schools and therefore there was no need for her to make any representation in this regard as per the liberty granted by the Hon'ble Single Judge in its judgment and order dated 30.1.2013.

Counsel for the petitioner has submitted that the fact of such regularisation could not be brought to the notice of this Court when it decided the Writ Petition No. 2515 of 1993 on 30.1.2013, and therefore, the liberty was granted by this Court.

It has come on record by means of affidavit filed by the interveners that the order of regularisation dated 10.8.1994, which has been relied upon by the petitioner is a fake order that has been subsequently prepared as an afterthought to pursue this writ petition. Had any such order been passed, then the petitioner would certainly have brought it to the notice of this Court on 30.1.2013.

It has also been pointed out by the counsel for the intervener that the judgment and order dated 30.1.2013 was never sought to be reviewed at any stage by filing appropriate review application before the Court concerned, nor was such an order was challenged in Special Appeal and it attained finality.

On merits of the case, observations have been made in the judgment of this Court dated 30.1.2013, which have been relied upon in the order impugned passed by the District Inspector of Schools, Agra dated 23.5.2014, and any observation made on the merits of the case regarding entitlement of the petitioner to continue as ad-hoc Teacher on the basis of appointment made by Committee of Management without jurisdiction in a substantive vacancy cannot now be looked into by this Court as it has attained finally.

As such from a perusal of the order impugned dated 23.5.2014, this Court finds two things that are undisputed. Firstly, after dismissal of Writ Petition No. 2515 of 1993 on 30.1.2013, the finding regarding illegality in the appointment of the petitioner having attained finality has been relied upon by the District Inspector of Schools. Secondly, the District Inspector of Schools has found that even after dismissal of writ petition on 30.1.2013, the then District Inspector of Schools on some misconception of law had on 7.6.2013 allowed the application of the petitioner for continuance and payment of salary, and such an order being against the findings recorded by this Court in Writ Petition No. 2515 of 1993 has been cancelled in the order impugned.

This Court finds that the judgment and order dated 30.1.2013 passed in Writ-A No. 2515 of 1993 has attained finality and has not been questioned by way of Review or Appeal. The finding recorded in the said judgment regarding illegal appointment of the petitioner by Committee of Management and such appointment being void ab-initio, having not been challenged by the petitioner, her case for regularisation, if any, directed to be left open by the judgment and order dated 30.1.2013 cannot be considered without the said findings being set aside by the appropriate Court.

This Court sitting Coordinate Bench jurisdiction cannot set aside the finding recorded by a Coordinate Bench of this Court with regard to illegality of the petitioner's initial appointment. By this writ petition, in the garb of challenging the consequential order dated 23.5.2014 cancelling the order for payment of salary initially passed by the then District Inspector of Schools on 7.6.2013 by the current District Inspector of Schools, the matter cannot be allowed to re-agitated.

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

Order Date :- 20.9.2017/Arif