Madanmohan Pandey vs State Of U.P. Thru' Secy. Of ...
2017 Latest Caselaw 4836 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37
 

 
RESERVED
 

 
Case :- WRIT - A No. - 13303 of 2004
 

 
Petitioner :- Madanmohan Pandey
 
Respondent :- State Of U.P. Thru' Secy. Of Education (Higher) U.P. & Ors.
 
Counsel for Petitioner :- Dr. H.N. Tripathi,Rajesh Tripathi
 
Counsel for Respondent :- C.S.C., Juned Alam, Rajendra Kumar Yadav, Sheo Ram Singh
 
AND
 

 
Case :- WRIT - A No. - 43159 of 2015
 

 
Petitioner :- Dr. Phulena Shukla
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Juned Alam,R.K. Ojha
 
Counsel for Respondent :- C.S.C.,H.N.Tripathi
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

These two writ petitions arise out of a dispute relating to the appointment and continuance on the post of an Assistant Teacher in the subject of Vyakaran (Grammar) claimed by the petitioner Madanmohan Pandey in the first writ petition, as against the claim of Dr. Phulena Shukla, the petitioner in the second writ petition and the respondent no.7 in the first writ petition on the post of Assistant Teacher Hindi (Adhunik) in Shri Narang Sanskrit Snatkottar Mahavidhyalaya, Ghughali, district Maharajganj duly affiliated to the Sampurnanand Sanskrit University, Varanasi which is a University as described in the U.P. State Universities Act, 1973, recognized and financially aided by the State Government. Even though the subjects to be taught, while holding the respective posts are different but on the facts as unfolded, the dispute is with regard to the availability of only one post amongst them, which also involves the status of the vacancy against which appointment is being claimed by each of the rival contenders as well as their mode of appointment and approval by the Competent Authority.

The crux of the dispute is as to whether the petitioner, Madanmohan Pandey has a valid claim of appointment and continuance on the said post as against the appointment, approval and continuance of the rival contender Dr.Phulena Shukla. The dispute can be more appropriately understood if the facts are taken note of in the chronological order as delineated herein-under.

At the very outset we may put on record that there is no dispute between the parties about the institution affiliated to the University referred to herein-above and the applicability of the U.P. State Universities Act, 1973, the 1st Statutes of the University its Ordinances and Regulations. Thus the appointments, the question of approval, the payment of salary and the decision by the Competent Authorities in this regard have to be viewed accordingly. We may put on record that in neither of the writ petitions the University has been made a party to the proceedings either by Madanmohan Pandey or by Dr. Phulena Shukla. Thus the exchange of affidavits is between the petitioners and the private respondents as well as the State Authorities who have brought on record the relevant documents on which reliance has been placed.

The claim of Madanmohan Pandey is that the institution has a sanctioned strength of the post of one Principal and six Assistant Teachers, two each for the subjects of Vyakaran (Grammar), Sahitya (Literature) and Modern Subject (Adhunik) respectively. According to Madanmohan Pandey, as pleaded in his writ petition, the Assistant Teacher who was also the Head of Department of the Grammar Section, Sri Ram Nayan Mishra on attaining superannuation retired on 30.06.1988. Against this vacancy the petitioner was appointed on 02.01.1989, Annexure-1 to the writ petition is the letter of appointment issued by the Manger of the institution on an application stated to have been moved by the petitioner on 25.11.1988. The said letter recites that Sri Madanmohan Pandey was being appointed in anticipation of approval by the Committee of Management of the institution and the State Authorities which is being done in the interest of students, and the appointment is on adhoc basis. The letter also recites that salary will be payable only on approval by the State Authorities. The letter of appointment was followed by a resolution of the Committee of Management dated 03.02.1989 whereby the aforesaid appointment letter issued by the Manager was approved. A copy of the said resolution is annexure-2 to the first writ petition. According to the petitioner the management forwarded a communication to the Sanskrit University seeking approval of the appointment of the petitioner on 25.07.1992 and the University in terms of Section 31(11) of the Act, 1973 read with Statute 11.24 of the Statutes of the Sanskrit University approval was granted on 05.08.1992 a copy whereof is annexure-6-B to the first writ petition.

At this juncture it is relevant to refer to a document which has been placed before the Court during the course of arguments and which has a bearing on the controversy namely, letter of the Director of Education, Government of U.P. addressed to the Manager of the institution. The said letter dated 19.05.1992 is quoted herein-under :

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The letter indicates that as against the vacant post of Sri Ram Nayan Mishra,(which is being claimed by the petitioner, Madanmohan Pandey), the permission to fill-up the post is being granted subject to the condition that the two Teachers appointed against the post of Adhunik Vishay (Modern Subject), who are occupying the two sanctioned posts shall continue, but in the event of any vacancy arising either due to retirement or death of one of them, the management will not seek appointment against one such post. The permission to select and appoint was given subject to the said condition.

The aforesaid letter is not a letter of approval of any appointment, rather it is the permission to fill up the post of Assistant Teacher (Grammar) Head of Department which nowhere indicates the post being occupied by the petitioner or any reference to it. To the contrary it grants permission to hold selection for appointment afresh.

According to Madanmohan Pandey after he came to occupy the post as per the letter of appointment dated 02.01.1989 and resolution of the Committee of Management, he started claiming salary from the Committee as well as from the Deputy Director Education and District Inspector of Schools concerned who are the disbursing authorities of the salary through State aided funds. This claim was made through an application dated 05.03.1990 and after the said approval dated 05.08.1992 by the University, on 10.01.1993, 11.03.1995 and 04.12.1997. Having failed to get any response or salary he filed Writ Petition No.927 of 1999 after ten years of his stated appointment and on 16.09.1999 the writ petition was disposed off with a direction to the District Inspector of Schools to pass an appropriate order on his claim of salary.

The District Inspector of Schools vide order dated 20.12.2001 held the appointment of the petitioner to be valid for which reference was made to the verification about the approval dated 05.08.1992 of the petitioner from the Sanskrit University that was sent by the District Inspector of Schools on 07.01.2000 and 24.02.2000. A letter was also sent to the Manager of the institution on 20.04.2001. According to the order of the District Inspector of Schools the information received from the Sanskrit University vide letter dated 20.05.2000 was that the issue of approval by the University of the appointment of Madanmohan Pandey was under scrutiny as a result whereof the District Inspector of Schools again despatched a letter on 06.06.2001 and the University responded further by stating that it was not possible to verify the same as the enquiry has not attained any finality.

The District Inspector of Schools then wrote a letter to the Deputy Director Education (Sanskrit), Allahabad who called upon the District Inspector of Schools to send a special letter to the University as a result whereof a letter was sent to the University and ultimately the University informed the District Inspector of Schools through the Deputy Registrar (Affiliation) that his office had issued an approval order. The District Inspector of Schools after receiving the said letter despatched a communication to the Deputy Director Education 7th Region, Gorakhpur for taking an appropriate decision in the matter and the entire report was submitted to the Deputy Director Education (Sanskrit) for appropriate action.

The Director of Education, Allahabad on 26.06.2001 is stated to have issued a communication to the District Inspector of Schools that since the Deputy Registrar (Affiliation) of the University has sent a communication indicating the approval of Madanmohan Pandey therefore appropriate decision should be taken accordingly by the District Inspector of Schools. Accordingly on the strength of all this communication the District Inspector of Schools ultimately approved the appointment of the petitioner vide order dated 20.12.2001 holding him entitled to hold the post that had fallen vacant against the vacancy caused due to the retirement of Sri Ram Nayan Mishra.

The said claim of Madanmohan Pandey came to be altered when the District Inspector of Schools sent a communication on 07.05.2002 to the Deputy Director Education (Sanskrit) in response to his communication dated 16.03.2002 whereby the District Inspector of Schools had been called upon to submit her report and to stay all further proceedings consequent to the order of approval dated 20.12.2001. By the said communication dated 07.05.2002 the District Inspector of Schools cancelled her earlier order dated 20.12.2001 and requested the Deputy Director Education to take a decision at his end for deciding the matter as per the directions of the High Court given in Writ Petition No.927 of 1999. A copy of the said cancellation was also despatched to the petitioner.

Madamohan Pandey filed Writ Petition No.49647 of 2002 assailing the said order before this Court. The writ petition was disposed off on 22.11.2002 by the following judgment :

"This writ petition is directed against the order dated 7th August, 2002 passed by the District Inspector of School, Maharajganj holding that the appointment of the petitioner is in excess of the post which was sanctioned for the institution concerned.

The version of the petitioner is that Shri Narang Sanskrit Snatkottar Mahavidhyalaya, Ghughali. District Maharajganj is a duly recognized institution. The petitioner was appointed on 2.1.1989 in the said institution on the post of sahayak vyakaran vibhagadhyaksh against the vacancy which occurred due to retirement of Shri Ram Nayan Mishra. The appointment of the petitioner was challenged and finally it was held by respondent no. 3, the District Inspector of Schools, on 20.12.2001 that the appointment of the petitioner was valid. By the impugned order he has held that the appointment of the petitioner is in excess of the sanctioned posts. According to the District Inspector of Schools only six posts were sanctioned and the appointment of the petitioner is at serial no. 7 and therefore, he is not entitled to get any salary from respondents 1 and 2.

We have heard Dr. H.N. Tripathi, learned counsel for the petitioner and learned Standing Counsel for respondents 1 to 3.

Learned counsel for the petitioner contended that the petitioner is working since 1989 and there was no objection as regards the post on which he was appointed. There were six posts of teachers besides one post of Principal. Secondly, it is urged that the petitioner was not afforded opportunity of hearing by the District Inspector of Schools and, therefore, the order is in violation of the principles of natural justice.

The matter, as to how many posts were sanctioned and as to whether the appointment of the petitioner is valid having been appointed on the post against the vacancy of Sri Ram Nayan Mishra who was a permanent teacher of the said institution may be properly examined by the Deputy Director of Education (Sanskrit), U.P. Allahabad, respondent no. 2. In case the petitioner submits representation before respondent before respondent no. 2 alongwith a certified copy of the order and any of the Writ Petition, he shall dispose of the same by a reasoned order affording opportunity of hearing to the petitioner within six weeks.

The writ petition is accordingly disposed of finally."

The petitioner filed his representation which did not find favour with the Deputy Director Education and vide order dated 31.12.2003 he came to the conclusion that since there was no post vacant including the post claimed by Madanmohan Pandey, therefore his appointment was against a post which was not available. The rejection of the representation has given rise to the filing of the first writ petition by Madamohan Pandey.

After the filing of the writ petition a Supplementary Affidavit was directed to be filed by the petitioner as per the order dated 02.04.2004 in order to establish the process of appointment and his continuance on the post in question. The Supplementary Affidavit dated 02.05.2004 is on record which however does not disclose any further material. A second Supplementary Affidavit was filed on 08.11.2010 and in view of the findings recorded with regard to the availability of the post in the impugned order dated 31.12.2003 the petitioner has attempted to explain the availability of the vacancy as desired by the Court. In paragraph no.5 of the said affidavit it has been stated that Sri Ramesh Prasad Mishra and Sri Uttam Kumar Tiwari were appointed and were getting salary against the two sanctioned posts of Assistant Teachers of Adhunik Vishay in the year 1981. The respondent no.7 in the second writ petition Dr. Phulena Shukla by concealing the said facts and without availability of any sanctioned post in Adhunik Vishay (Modern Subject) being available got himself appointed which was conditionally approved on 31.03.1981 by the University and the said approval order clearly stated that it was being extended in terms of Section 31(11) of the Act, 1973 subject to the condition that the post which is not sanctioned by the State Government, the State Government shall not pay any salary from the State Exchequer and it shall be the total liability of the management.

The said approval order mentions the name of another Teacher namely, Awadhesh Pandey as having been appointed as an Assistant Teacher in Vyakaran along with that of Dr. Phulena Shukla. According to the petitioner Dr. Phulena Shukla was not entitled to any salary as it was not an approval against any sanctioned available post. The petitioner was appointed against the post held as Head of Department of Vyakaran by Ram Nayan Mishra who retired on 30.06.1988. Thus according to the petitioner Deputy Director Education committed a manifest illegality in passing the impugned order dated 31.12.2003 by calculating the post held by Dr. Phulena Shukla within the sanctioned strength whereas there were only six posts in all and the appointment of Dr. Phulena Shukla had been made on a post which was not available in 1981 itself. He therefore could not have been adjusted against the vacant post of Ram Nayan Mishra nor the petitioner's appointment could have been annulled on that count.

The petitioner filed a third Supplementary Affidavit bringing on record that according to the management five Teachers were getting payment of salary. A new fact was alleged in paragraph no.4 of the the third Supplementary Affidavit that one Sri Chandra Shekhar Chaturvedi was working after appointment since 02.12.1973 in the department of Grammar. Sri Ramesh Prasad Mishra was working as an Assistant Teacher Modern Subject (Adhunik) having been appointed on 02.12.1973 and two other Teachers in the same subject namely, Uttam Kumar Tiwari and Dr. Phulena Shukla. The petitioner has alleged that against the available two posts of Modern Subject (Adhunik) three Teachers had been working and it is for this reason the payment of salary to Dr. Phulena Shukla was wrong since he had obtained his approval by concealment of fact and his approval by the University was conditional clearly stating that if the post is not sanctioned the salary shall not be paid from State funds.

The first writ petition came to be allowed on 27.09.2013 quashing the order dated 31.12.2003 by a Division Bench of this Court. After the writ petition was allowed a recall application was filed on behalf of the respondent no.7, Dr. Phulena Shukla in the first writ petition. This application was moved on 18.08.2014 was supported by an affidavit contending that the writ petition had been allowed without issuing any notices to the private respondent nos.5, 6 and 7 and on account of the said judgment the salary of the respondent no.7 which was being paid by the State Exchequer has been stopped. An information had been received from the college on 09.08.2014 to that effect.

It may also be brought on record that the first writ petition had been allowed on 27.09.2013 but the order was not complied with as a result whereof Madanmohan Pandey filed Contempt Application No.2595 of 2014 in which orders were passed on 22.04.2014 in compliance whereof the State Government passed an order for compliance of the judgment of the High Court, and the Director of Education was called upon to implement the same. This order was passed on 01.09.2014 before any orders could be passed on the recall application.

The recall application was taken up for consideration on 05.09.2014 and the delay in filing of the application was condoned and the application was allowed on the same date whereby the judgment dated 27.09.2013 was recalled and the first writ petition was restored to its original number. Notices were issued to the respondent nos.5 and 6, Sri Ramesh Prasad Mishra and Sri Uttar Kumar Tiwari and the petitioner was granted time to file a Rejoinder Affidavit to the Counter Affidavit on behalf of the respondent no.7. It may be placed on record that the Counter Affidavit had been filed on 04.09.2014.

Dr. Phulena Shukla filed Writ Petition No.51652 of 2014 assailing the order dated 01.09.2014 of the State that had been passed before the recall application had been allowed referred to hereinabove. The said writ petition was disposed off by a learned Single Judge of this Court on 23.09.2014 after noticing the facts of the recall and permitting Dr. Phulena Shukla to move an application before the State Government about the recall of the said order, and also to the Special Secretary concerned to consider the application of the petitioner ignoring the fact of the orders passed in the Contempt Petition. The order dated 23.09.2014 is extracted hereinunder :

"Heard Sri Radha Kant Ojha, learned Senior Advocate, assisted by Sri Juned Alam, learned Counsel for the petitioner and learned Standing Counsel, who appears for the respondent nos. 1 to 5.

In view of the order proposed to be passed, there is no need to issue notice to the respondent nos. 6 and 7.

With the consent of learned Counsel appearing for the parties, this writ petition is being disposed of finally at this stage in terms of the Rules of the Court.

The petitioner has preferred this writ petition for issuance of a writ of certiorari to quash the order dated 01st September, 2014, whereby the Special Secretary, U.P. Madhyamik Sanskrit Shiksha Parishad, Lucknow, the respondent no. 3, has passed an order in compliance of the order of this Court dated 27th September, 2013 passed in Writ-A No. 13303 of 2014.

It is contended by Sri Ojha that the order dated 27th September, 2013 itself has been recalled by the Court on 05th September, 2014, therefore, this order has lost its efficacy.

Be that as it may, the Court finds it appropriate to dispose of this writ petition leaving it open to the petitioner to make an application before the Special Secretary, the respondent no. 3, to bring to his record the fact that the order dated 27th September, 2013 has been recalled on 05th September, 2014. Learned Counsel for the petitioner states that the Special Secretary may take a decision in view of the fact that the respondent no. 7 has preferred a contempt petition for compliance of the order dated 27th September, 2013. It would be open to the Special Secretary to consider the application of the petitioner ignoring the fact of contempt petition. The Court hopes and trusts that in case a fresh representation along with certified copy of this order is filed before the Special Secretary, he shall pass the appropriate order expeditiously preferably within a period of six weeks from the date of communication of this order. The impugned order shall abide by the order passed by the Special Secretary.

Needless to say that this Court has not expressed its opinion on the merits of the case. The Special Secretary shall pass the order independently in accordance with law.

Accordingly, the writ petition is disposed of.

No order as to costs."

According to Dr. Phulena Shukla since the said order was not being complied with he filed Contempt Application No.264 of 2015 in which observations were made calling upon the State Government to pass an order, and in the event the same is not complied with, it was made open to the applicant to approach the Court again. The application was disposed off on 22.01.2015 yet no response was shown by the Authorities as a result whereof Dr. Phulena Shukla filed a second Contempt Application No.1931 of 2015 in which notices were issued on 07.04.2015 as to why the non-compliance should not be treated to be an act of wilful disobedience.

In compliance of the aforesaid order the State Government proceeded to pass a fresh order on 16.07.2015 after considering the facts in relation to the dispute and come to the conclusion that the appointment of the respondent no.7, Dr. Phulena Shukla was not against any sanctioned post and his appointment was illegal and accordingly he is not entitled to payment of any salary. The representation filed by Dr. Phulena Shukla was rejected. It was held that when the approval to the appointment of Dr. Phulena Shukla is being claimed i.e. on 31.03.1981 there was no vacant post available for his appointment. This order dated 16.07.2015 is subject matter of challenge in the connected Writ Petition No.43159 of 2015 where Dr. Phulena Shukla is the petitioner and Madanmohan Pandey is the respondent no.7.

The case took another turn when the matter proceeded before this Court whereby it was alleged that pursuant to the letter dated 19.05.1992 extracted herein-above an advertisement was made for the post of Grammar against which one Sri Arun Kumar Pandey came to be selected and the petitioner, Madanmohan Pandey having participated remained unsuccessful. When the matter of Arun Kumar Pandey reached the University, the University granted approval on 16.09.1994. These facts have been brought on record and are available in the connected Writ Petition No.43159 of 2015. The proceedings dated 15.03.1994 have been filed indicating that the petitioner, Madanmohan Pandey was also one of the candidates who was interviewed along with ten other candidates against the said advertisement dated 14.11.1992. A copy of the approval order of Arun Kumar Pandey has been filed in the said writ petition which is dated 16.09.1994 approving his appointment in terms of Statute 11.23 of the University read with Section 31 (11) of the Act, 1973.

When this fact was disclosed before this Court, the petitioner filed a Supplementary Rejoinder Affidavit in the first writ petition on 13.05.2016 and came up with a case that Arun Kumar Pandey was not qualified and the post was of Navya Vyakaran and Assistant Head of Department. Since Arun Kumar Pandey did not have the degree of Acharya as required, inspite of the approval dated 16.09.1994, the management passed a resolution on 20.04.1995 refusing to accept the said approval on the ground that the candidate was ineligible as he did not possess the essential qualification. The Manager of the institution accordingly despatched a letter to the University on 26.02.1995 to cancel the said approval. At this juncture it is relevant to mention that the appointment of Arun Kumar Pandey does not appear to have been considered in either of the orders impugned in both the writ petitions nor does it appear to have been suitably dealt with, may be for the reason that the said candidate either did not function in the institution or receive salary, as the management was opposing his selection and approval.

Since the dispute relates to the exact number of sanctioned posts, the vacancies available at the time of the claim of appointment, the petitioner filed an impleadment application on 09.08.2016 in the first writ petition stating therein that one Sri Chandra Shekhar Chaturvedi ought to be impleaded as he was also getting salary from State exchequer reference whereof has been made herein-above. The said application was allowed as late as on 30.08.2016 and Sri Chandra Shekhar Chaturvedi came to be impleaded as respondent no.8 who filed his Counter Affidavit through Shri Sheo Ram Singh, Advocate which is dated 25.09.2016 stating therein that one Sri Awadhesh Pandey who had been working on the post of Head of Department (Vyakaran) retired on 30.06.1989 and hence the vacancy whereof occurred that was communicated to the Director of Education who permitted selections and appointment vide his letter dated 20.09.1989 and an advertisement was issued on 08.04.1990. The interview was held and Chandra Shekher Chaturvedi was also called for interview and was finally selected to which the University granted approval on 04.12.1990. A formal letter of appointment was issued on 06.12.1990. This appointment of Chandra Shekhar Chaturvedi was never challenged and nor does the writ petition contain any averments in respect thereof. A Rejoinder Affidavit to the said Counter Affidavit has been filed by Madanmohan Pandey reiterating his stand in the writ petition which obviously does not dispute the selection and appointment of Chandra Shekhar Chaturvedi.

A Short Counter Affidavit has been filed on behalf of the respondent nos.2 and 3 bringing on record the facts which have led to the filing of the connected Writ Petition No.43159 of 2015 and supporting the order dated 16.07.2015. However, the operation of the order dated 16.07.2015 came to be stayed in the connected writ petition by the order dated 20.08.2015 extracted herein-under :

"Heard Sri R. K. Ojha, learned Senior Counsel for the petitioner and learned Standing Counsel, who appears for the respondent Nos.1 to 5.

Issue notice to the respondent Nos.6 and 7 returnable within a period of four weeks from today.

Learned counsel for the petitioner has contended that her appointment had been dully approved by the University on 31.03.1981. He has further drawn the attention of the Court to the order dated 31.12.2003 by which the claim of the Madan Mohan was rejected and appointment of the petitioner was found to be within the sanctioned strength of the institution. It is also evident from the record that Madan Mohan has challenged this order by means of Writ Petition No.13303 of 2004, which was initially allowed by judgment and order dated 27.09.2013. However, since the same was ex-parte, it was recalled by the Court on 05.09.2014. The petitioner, who was thus evidently working from 1981 is faced with the impugned order, which mandates stoppage of salary.

Matter requires consideration.

All noticed respondents may file their replies within four weeks from today.

In the meanwhile, till the next date of listing, operation of the impugned order dated 16.07.2015 shall remain stayed."

The said interim order passed in the connected with petition has been continued and later-on both the writ petitions were connected and directed to be heard by this Bench under orders of Hon'ble The Chief Justice on 18.08.2017 whereafter we had passed the following order on 01.09.2017 :

"Heard Dr. H.N. Tripathi, learned counsel for the petitioner and the learned Standing Counsel for the respondents nos.1, 2 and 3, Shri R.K. Ojha, learned Senior Counsel and Shri Juned Alam, learned counsel for the respondent no.7.

This is a contest with regard to the status of appointment being claimed by the petitioner on the post of Assistant Teacher (Vyakaran) in the respondent no.4-Institution.

This dispute has seen several rounds of litigation and on remand the impugned order dated 31.12.2003 has been passed which is under challenge.

The impugned order proceeds to record findings which the learned counsel for the parties are disputing either way. The petitioner's contention is that the respondent no.7 came to be appointed against a post which was permanently held by one Ramesh Chandra Mishra, and that if Ramesh Chandra Mishra was reinstated in service, the respondent no.7 ought to have been removed. On the other hand, learned counsel for the respondent no.7 submits that the appointment of the petitioner has not been approved, and he being not a valid appointee, he cannot contest the position that has emerged after the passing of the impugned order.

There is a third dimension of the case, namely, the facts averred in the supplementary counter affidavit filed by the District Inspector of Schools. This third dimension emerged after this writ petition had been finally allowed on 27th September, 2013 but the order was recalled at the instance of the respondent no.7. However, on account of the passing of the order the authorities proceeded to pass orders in relation to the aforesaid dispute and the ultimate order has been passed is 16th July, 2015. Against the said order the respondent no.7 has filed writ petition no. 43159 of 2015 that has been listed today and directed to be heard by this bench.

Shri Ojha, learned Senior Counsel for the respondent no.7 prays that the matter be taken on Tuesday.

Put up on Tuesday i.e. 5.9.2017. "

The arguments were advanced on behalf of Madanmohan Pandey by Dr. H.N.Tripathi and on behalf of Dr. Phulena Shukla by Sri R.K.Ojha, learned Senior Counsel and Sri Sheo Ram Singh for the respondent no.8 and the learned Standing Counsel on behalf of the State.

There is one fact which deserves to be noted at this stage that after the directions that were issued, on the judgement dated 27.09.2013 being recalled, to serve the respondent nos.5 and 6, a Division Bench of this Court noticing the fact that the respondent nos.5 and 6 had already superannuated passed an order on 05.12.2014 in Application no.314008 of 2014 for deleting the name of the respondent nos.5 and 6 from the array of the respondents. The order dated 05.12.2014 is extracted herein-under :

"An application No. 314008 of 2014 has been moved on behalf of the petitioner with a request that name of respondent nos 5 and 6 be deleted from the array of respondents and further request has been made that notice be issued to respondent no.4.

Once such is the factual situation that has been so made, and it has been mentioned that respondent nos. 5 and 6 as on date stands superannuated, as such learned counsel for the petitioner is permitted to delete the name of respondent no.5 and 6 from the array of respondents and as far as respondent no.4 is concerned, it is the Managing Committee of the institution, as such let notices be issued to respondent no.4.

With these observations, application stands disposed of."

The corrections have not been carried out as yet. Accordingly learned counsel and the office are directed to carry out the said corrections in the array of parties as per the said order.

The issues that arise for consideration in order to arrive at a conclusion are: a) the procedure prescribed for appointment as a Teacher in a Sanskrit Post Degree College affiliated to the Sanskrit University, Varanasi; b) the status of appointment of Madanmohan Pandey and that of Dr. Phulena Shukla as against a sanctioned existing vacancy in accordance with the procedure prescribed in law; c) the power of the State Authorities to pass orders relating to the existence of sanctioned posts and the payment of salary against such posts; d) the legality and validity of the impugned orders dated 31.12.2003 and the order dated 16.07.2015 as also the intervening orders passed from time to time; e) the reliefs that can be possibly granted or refused in the background of the facts of the present case to either of the contending parties.

The first issue is as to the applicability of law in the matter of appointment of Assistant Teachers in a Post Graduate Sanskrit College affiliated to the University. For this one has to keep in mind that the appointment by Madanmohan Pandey is being claimed in January/February, 1989 with its alleged approval by the University on 05.08.1992 whereas Dr. Phulena Shukla claims to have been appointed on 31.03.1981. For this one may revert to the provisions of Section 31(11) of the U.P. State Universities Act, 1973 which is extracted hereinunder :

"[(11) (a) No teacher recommended by the Selection Committee shall be appointed by the Management of an affiliated or associated college (other than a college maintained exclusively by the State Government) unless prior approval of the Vice-Chancellor has been obtained.

(b) The Management shall, as soon as possible, after the meeting of the Selection Committee, submit the recommendations of the Committee, alongwith other relevant documents to the Vice-Chancellor for approval.

(c) The Vice-Chancellor, if he is satisfied that the candidate recommended by the Selection Committee does not possess the minimum qualifications or experience prescribed, or that the procedure laid down in the Act for the selection of the teacher has not been followed, shall convey to the Management his disapproval :

Provided that if the Vice-Chancellor does not convey his disapproval within a period of one month from the date of receipt of the documents referred to in clause (b), or does not send to the Management any intimation in connection therewith, he shall be deemed to have approved of the proposal."

The Statutes applicable are 11.14 to 11.33.

Once the selection and appointment is made in terms of the aforesaid provisions the question of payment of salary of an aided institution against a sanctioned post is governed by Chapter XI-A of the 1973 Act. Section 60-A (i) defines a college extracted hereinunder :

"60A )(i) 'College' means any college affiliated to or recognised by any University in accordance with the provision of this Act or the Statutes made thereunder and for the time being receiving maintenance grant from the State Government (but does not include a college maintained exclusively by the State Government or a [Nagar Mahapalika];

A Teacher in relation to such a college has been defined in Section 60-A (vi) extracted hereinunder :

60-A (vi) 'teacher', in relation to a college, means a teacher in respect of whose employment maintenance grant was being paid by the State Government during the financial year 1974-75, or who is employed with the approval of the Vice-Chancellor of the University concerned -

(a) to a post created, before April 1, 1975, with the permission of the Vice-Chancellor concerned; or

(b) to a post created, after March 31, 1975, with the permission of the Director of Education (Higher Education)."

The payment of salary has to be made without deductions under Section 60-B of 1973 Act. The salary has to be paid for which the procedure has been provided under Section 60-D of the Act. A perusal of the gamut of the aforesaid provisions establishes that the appointment of a Teacher has to be made by way of a selection through a selection Committee and approved by the University if the appointment is to be made on a permanent substantive basis against a sanctioned vacancy.

Applying the aforesaid provisions in the case of Madanmohan Pandey what we find is that he claims appointment against a permanent substantive vacancy on ad-hoc basis by the Manager through a letter of appointment dated 02.01.1989 in anticipation of approval of the Committee of Management and the University as well as the Competent Authorities. The provisions of Section 31(11) of 1973 Act or the Statutes 11.14 to 11.33 nowhere contemplate an adhoc appointment by the Manager against a substantive vacancy, as is mentioned in the letter of appointment of Madanmohan Pandey. There is no record available with regard to his selection through a Selection Committee or his appointment by a Committee of Management. A resolution of the Committee of Management dated 03.02.1989 has been placed on record which approves the appointment offered to Madanmohan Pandey on his application dated 25.11.1988. There is no such procedure under the Statutes governing the institution as quoted herein-above for such post-appointment approval by the Committee of Management. To the contrary it is the management which appoints a Teacher and is not an approving Authority. The appointment has to be after selection about which there is no evidence.

The fact however remains that the Deputy Registrar (Affiliation) of the Sanskrit University has issued a communication on 05.08.1992 stating about the approval to the appointment of Madanmohan Pandey. Statute 11.32 of University Statutes does not contemplate such approval. The District Inspector of Schools who was directed by the High Court vide judgment dated 16.09.1999 to pass an appropriate order on the claim of salary of Madanmohan Pandey issued an order on 20.12.2001 wherein there is a description about the verification of the said approval by the University dated 05.08.1992, after the matter had travelled through different educational Authorities, including the Director of Education and the Deputy Director Education. The District Inspector of Schools after noticing the said facts passed orders on 20.12.2001 for payment of salary. This document dated 20.12.2001 also indicated the existence of the approval order dated 05.08.1992.

However the District Inspector of Schools cancelled the earlier order dated 20.12.2001 vide communication dated 07.05.2002 which was challenged by Madanmohan Pandey in Writ Petition No.49647 of 2002 that was disposed off on 22.11.2002 with a direction to the Deputy Director Education (Sanskrit) to pass appropriate orders. It may be mentioned that the Deputy Director Education is a higher Authority than the District Inspector of Schools and is referred to as an Authority under the provisions of Chapter 9-A of the 1973 Act for dealing with such matters.

The Deputy Director of Education, thereafter, has passed the order on 31st December, 2003, which is impugned in the first writ petition where it has been recorded that Madan Mohan Pandey is not entitled to claim any salary as he was not appointed against any available vacant post. The aforesaid order has been assailed on the ground of principles of natural justice and that it was passed totally ignoring the fact of the approval of the appointment of Madan Mohan Pandey as a teacher of the college by the Sanskrit University.

Having considered the submissions raised, we may point out that so far as the approval by the University dated 05.08.1992 is concerned, the respondent no. 7. Dr. Phulena Shukla in his rejoinder affidavit dated 31.08.2017 filed in Writ Petition No. 43159 of 2015 has annexed an information received under the Right to Information Act from the Information Officer of the University that the approval order of Madan Mohan Pandey dated 5.8.1992 is not found to be recorded in the available records. A photostat copy of the approval of Arun Kumar Pandey was available. It has further being stated that the information is being tendered in response to the query raised vide letter dated 26.09.2014. Thus, the very approval order of Madan Mohan Pandey is under a cloud and at the same time, the University has not been made a party to the writ petition to enable this Court to gather any information or verify the correctness or otherwise of the status of the said approval dated 5.8.1992. The Deputy Director of Education in the impugned order has, however, not delved into the mode of appointment of Madan Mohan Pandey, the procedure as prescribed and discussed hereinabove under the statutes of the University or the exact status of the vacancy after having recorded the number of posts available. The Deputy Director of Education, therefore, gave findings only on the basis of partial information without deciding the validity of the approval order dated 5.8.1992.

While considering the availability of the post and the person validly appointed iny so far as subject of Vyakaran is concerned, for which Madanmohan Pandey is a claimant, there are two others names that are appearing through the pleadings which deserve consideration and which have not been adequately dealt with in either of the impugned orders. The first is that of Sri Chandra Shekhar Chaturvedi, the respondent no.8 herein, who on the one hand is being claimed by the petitioner to have been appointed as a Vyakaran Teacher on 02.12.1973, which is in a subject with which Madanmohan Pandey is concerned. It is alleged by the petitioner in paragraph no.4 of his third Supplementary Affidavit filed in Writ Petition No.13303 of 2004 that Sri Chandra Shekhar Chaturvedi was appointed as a Vyakaran Teacher on 02.12.1973. On the other hand Sri Chandra Shekhar Chaturvedi has filed a Counter Affidavit on 25.09.2016 in Writ Petition No.13303 of 2004 and in this affidavit he brings forward the name of one Sri Awadhesh Pandey who was working as Head of Department of Vyakaran and retired on 30.06.1989. On occurrence of this vacancy, a permission is stated to have been granted by the Director of Education on 20.09.1989 for which an advertisement was issued on 08.04.1990 whereafter the selections are stated to have been carried out and Sri Chandera Shekhar Chaturvedi claims to have been appointed against the said post that fell vacant due to the retirement of Sri Awadhesh Pandey. The approval communication dated 04.12.1990 by the Deputy Registrar (Affiliation) of the Sanskrit University that has been filed along with the Counter Affidavit recites the date of approval to this appointment by the University as 28.11.1990.

The issue therefore is that an appropriate consideration of this fact which in our opinion does not appear to have been noted in depth in either of the impugned orders as to whether Sri Chaturvedi was continuing against a post of Vyakaran since 1973 as alleged by the petitioner or he is an appointee of the year 1990 against the vacancy of Sri Awadhesh Pandey. This has not been determined by analysing as to who were the two persons who were earlier working on the post of Vyakaran Teachers for which only two posts are sanctioned. It is then only that Madanmohan Pandey can claim an appointment against an available vacancy. It will have to be first determined as to whether the claim of Madanmohan Pandey is against the vacancy of Sri Ram Nayan Mishra, because if Sri Chandra Shekhar Chaturvedi was also continuing in the institution against a Vyakaran post since 1973, then the question is as to what post was held by Sri Awadhesh Pandey on whose retirement Sri Chandra Shekhar Chaturvedi is claiming a fresh appointment. This issue also has not been dealt with apt clarification which would require any enquiry about the status of the sanctioned post, the status of the actual vacancies existing and the approval granted by the Sanskrit University. In this background in our opinion Sri Chandra Shekhar Chaturvedi was a proper and necessary party who has been rightly impleaded as respondent no.8 in this writ petition vide order dated 30.08.2016.

The dispute in relation to Madanmohan Pandey takes another turn because the claim of the rival contenders is to the effect, that the post which is being claimed by Madanmohan Pandey, for which the University is stated to have granted approval on 05.08.1992, is clearly in conflict with the fact that the post was advertised on 14.11.1992 against which Madanmohan Pandey had also applied and was interviewed on 15.03.1994. It was Arun Kumar Pandey who came to be approved against the said post on 16.09.1994, even though the claim of Madanmohan Pandey is that he never joined and was not allowed to function in the institution. This dimension also does not appear to have been examined in either of the impugned orders.

The claim of Madanmohan Pandey therefore has to be understood in this background as he contends that so far as Dr. Phulena Shukla is concerned, he could not have been treated to be continuing against any sanctioned available vacancy of Assistant Teacher in Modern Subject (Adhunik Vishay) as two posts of the said subject were already occupied by Sri Uttam Kumar Tiwari and Sri Ramesh Chandra Mishra when Dr. Phulena Shukla came to be appointed in 1981.

The appointment of the rival contender Dr. Phulena Shukla is based on the appointment letter dated 27.12.1980 which is stated to been issued pursuant to the appointment under the advertisement dated 12.09.1980. He claims to have joined on 01.01.1981, the approval whereof was granted on 31st March, 1981. The advertisement which has been filed as Annexure No. 1 to the writ petition discloses one post of Assistant Teacher in Modern Subject (Adhunik Vishay). He was neither appointed nor could have claimed benefit against the post of Vyakaran Teacher.

To understand the aforesaid claim it has to be kept in mind that Sri Ramesh Prasad Mishra was admittedly working as an Assistant Teacher in Modern Subject (Adhunik Vishay) having been appointed on 02.12.1973 which is not disputed by either of the parties. He is stated to have been dismissed from service and thereafter two appointments were made against the two posts of Modern Subject (Adhunik Vishay). These appointments were made on 01.01.1981 namely that of Sri Uttam Kumar Tiwari the respondent no.6 in Writ C No.13303 of 2004 and Dr. Phulena Shukla the respondent no.7 therein. The appointment of Sri Uttam Kumar Tiwari does not appear to have been challenged. The appointment of Dr. Phulena Shukla was approved along with that of Sri Awadhesh Pandey vide approval order dated 31.03.1981. A copy of the approval order is on record of the pleadings. The approval of Sri Awadhesh Pandey was against the post of Assistant Teacher of Vyakaran on whose retirement Sri Chandra Shekhar Chaturvedi claims to have been appointed in 1981 as noted above.

The admitted case is that Dr. Phulena Shukla was appointed against the post of Modern subject (Adhunik Vishay) and which post is being claimed by Dr. Phulena Shukla that became available due to the dismissal of Sri Ramesh Chandra Mishra. It is undisputed by him that under the judgment and order of the Civil Court on 19.12.1984 Sri Ramesh Chandra Mishra came to be reinstated. It is thus clear that there was a substantive vacancy due to the dismissal of Sri Ramesh Chandra Mishra when Dr. Phulena Shukla claims to have been appointed in 1981 but the situation stood reversed with the reinstatement of Sri Ramesh Chandra Mishra which is also not a disputed fact. Consequently in our opinion if Sri Ramesh Chandra Mishra had returned back to his post, then there was no post available for Dr. Phulena Shukla to be adjusted against the subject of Adhunik Vishay (Modern Subject). Consequently his continuance and payment of salary 1984 onwards ought to have been thoroughly examined which was not done by Deputy Director Education while passing the order dated 21.12.2003. The said facts have been brought forward in the order dated 16.07.2015 passed by the State Government but at the same time the fact remains that Dr. Phulena Shukla was continued and was being paid salary when the matter was being considered upto the stage of recall of the earlier judgment on 05.09.2014. Thus there are two contradictory orders in relation to the continuance of Dr. Phulena Shukla as well.

The contention of Madanmohan Pandey is that Dr. Phulena Shukla was being illegally continued against a third post the salary whereof was being withdrawn as against the post of the subject of Vyakaran which could not have been done.

We are of the considered opinion that the State Government was justified in entering into this issue while passing the order dated 16.07.2015 as the continuance of Dr. Phulena Shukla as against an available post in the subject of Adhunik Vishay (Modern Subject) after the reinstatement of Sri Ramesh Chandra Mishra is clearly questionable.

In order to save his appointment the argument of learned counsel for Dr. Phulena Shukla is that he is entitled to the benefit of the Government Order dated 18.09.1984. It is urged that the said Government Order regularises any appointment which has been made in excess of posts. This argument is based on the presumption that even assuming that Sri Ramesh Chandra Mishra had been reinstated back in service, which was the post against which Dr. Phulena Shukla was appointed, the appointment can not be now annulled as it is protected in terms of the Government Order dated 18.09.1984.

We are unable to agree to this proposition for the simple reason that the said Government Order spells out that if appointments are made in excess of the posts advertised, then such appointments will be saved to a certain extent. In the instant matter Dr. Phulena Shukla was never appointed either in excess of the sanctioned posts, excess of vacancies or in excess of the posts advertised for selections. The Government Order only speaks of appointments against posts in excess of that which have been advertised. The same does not envisage a post in excess of the sanctioned strength. Dr. Phulena Shukla has himself claimed appointment against the post that was held by Sri Ramesh Chandra Mishra who had been dismissed from service. In this contingency the Government Order does not come to his aid at all and consequently this argument is rejected.

The only question that now remains to be examined is as to whether the payment of salary to Dr. Phulena Shukla was against a post within the sanctioned strength and whether his continuance was against the subject concerned for which he claims his appointment.

We would have ourselves recorded findings on the material available on record, but a major hurdle that has come in our way is the non-impleadment of the Sanskrit University, Varanasi as a respondent in either of the petitions. We have our doubts about their non-impleadment by both the rival contenders as the real picture would have emerged with the process of approval undertaken by the University against a sanctioned post and available vacancy. The version of the University therefore is not available before this Court but the Authorities ought to have proceeded only after putting the University to notice and calling for the records from the University in this regard. It is evident from the facts narrated above that this exercise was attempted by the District Inspector of Schools while passing the order dated 20.12.2001 which indicates only an unsure status of the app roval of the appointment of Madanmohan Pandey on the verification of the approval dated 05.08.1992.The aforesaid doubt has been discussed by us hereinabove. Similarly in the case of Dr. Phulena Shukla the earlier order of the Deputy Director Education dated 31.12.2003 which is impugned in the first writ petition does not reflect the correct picture after a proper verification of the facts. In this background we find that neither the order dated 31.12.2003 can be sustained nor the order of the State Government dated 16.07.2015 can be sustained. For the same reason the other intervening orders of the District Inspector of Schools, the Deputy Director Education or any opinion expressed by the Authorities can be stated to have taken notice of all the facts and verified it from the Sanskrit University before arriving at any conclusion. We have already made observations hereinabove on the issues raised by the counsel for the parties and we therefore now expect the Authorities to proceed only after taking into consideration the aforesaid observations and pass appropriate orders as it involves the fate of the continuance of the rival contenders and their claim to salary.

From this point of view we therefore nullify all the proceedings and quash the orders dated 31.12.2003 and 16.07.2015 and direct the State Government to traverse the entire facts as observed hereinabove, call for the records and the comments from the Sanskrit University, Varanasi in the light of what has been indicated by us and also from the respective concerned Authorities, and then pass appropriate orders after giving an opportunity to Madanmohan Pandey and Dr. Phulena Shukla as well as the management of the institution in accordance with law within a period preferably of three months from the date of production of certified copy of the order before the respondent no.1 who may either decide the matter himself or by any other Secretary or Special Secretary of the State Government to whom it may be assigned by the said respondent.

The writ petitions are accordingly allowed to the aforesaid extent. It is made clear that no payment of salary will be made to either of the contenders till such decision is taken by the State Government.

Order Date :- 22.09.2017

R./