Anil Kumar Pandey & Others vs State Of U.P. Thru' Secretary ...
2018 Latest Caselaw 1992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 13                                             Reserved On: 21.05.2018
 
                                                                   Delivered On: 16.08.2018
 
Case :- WRIT - A No. - 27217 of 2007
 

 
Petitioner :- Anil Kumar Pandey & Others
 
Respondent :- State Of U.P. Thru' Secretary Basic Education & Others
 
Counsel for Petitioner :- Suresh Chandra Dwivedi,Siddharth Khare
 
Counsel for Respondent :- C.S.C.,K.S. Kushwaha,K.S.Shukla
 

 
Connected with
 
Case :- WRIT - A No. - 2300 of 2010
 
Petitioner :- Ram Bodh
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- Pankaj Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 
And 
 
Case :- WRIT - A No. - 31577 of 2007
 
Petitioner :- Nand Lal Mishra
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- D.K. Pandey,A.K.Dubey,Dharmendra Kumar Pandey
 
Counsel for Respondent :- C.S.C.,A.K.Yadav,K.S.Shukla,P.D. Tripathi
 

 
Hon'ble Ajit Kumar,J.

1. Heard Sri Siddharth Khare, Sri Pankaj Srivastava and Sri A.K.Dubey, learned counsels for the petitioners and Sri Bhanu Pratap Singh and Sri P.D. Tripathi, learned Standing Counsel for the respondents.

2. These three writ petitions arise out of a common controversy and common order of cancellation of their respective appointments as Peon on fixed pay under the order dated 27.05.1991 and finally rejection of their representation vide order dated 25.10.2007. Since the appointments and cancellation thereof is in respect of employees of same district Allahabad in Basic schools run by District Basic Education Board (hereinafter to be referred as 'Board') and, therefore, all the three writ petitions have been clubbed and heard together and are being decided by this common judgment taking Writ-A No. 27217 of 2007 as leading writ petition. As the facts involved in all the three cases are common, therefor, for convenience reference is made to the facts and various orders appended in Writ-A No. 27217 of 2007. In the leading writ petition, there are 13 petitioners, whereas, the other two writ petitions are filed by individual petitioners.

3. The facts of the case are that for making appointments on Group-'D' posts in Basic Schools under the District Basic Education Officer, Allahabad (hereinafter to be referred as 'DBEO'), an advertisement was made in news paper namely 'Prayagraj' dated 15.04.1991 published from Allahabad and prior to that, on 12.04.1991, the Sub District Inspector of Schools (hereinafter to be referred as 'SDI') intimated the office of DBEO about the existing vacancies being advertised with a request him to get the notice also pasted on the notice board of office of DBEO. Applications were invited by 19.04.1991. This letter of the SDI dated 12.04.1991 makes an acknowledgment of letter of DBEO dated 11.04.1991 as a direction to make selection and appointment. The petitioners applied against the advertisement. Their candidature was considered by the Selection Committee that consisted of DBEO, SDI and also Assistant Sub Inspector of Schools.

4. The petitioners having been selected, approval to their selection was obtained from DBEO on 20.04.1991 and appointment orders were issued on 22.04.1991 appointing as many as 48 persons on Group 'D' positions in various Senior Basic Schools. The petitioners immediately reported for joining. However, while they worked for almost over a month that suddenly the order was passed on 27.05.1991 by the SDI canceling the appointment dated 22.04.1991 on the basis of some oral direction issued by the Regional Assistant Director of Basic Education, 4th Division, Allahabad. This order came to be challenged before this Court by petitioners in Writ-A No. 17025 of 1991 and this Court initially on 05.06.1991 passed the following order:

"Put up on the date of admission.

The argument is that in pursuance of order of appointment the petitioners took charge and started working and therefore, their appointment could not have been cancelled without giving opportunity to them. In view of this, I suspend the operation of the order dated 27th May, 1991 for a period of six weeks. However, it will be open to the respondents to pass order afresh in accordance with law."

5. This order was extended till further orders by this Court on 16.7.1981 in following terms:

"Learned counsel for the petitioner prays for and is granted a week's time to file rejoinder affidavit. List this petition for admission on 26.7.91.

Meanwhile the interim order dated 5.6.91 passed by this court shall continue to be operative until further orders of this court."

6. In compliance of the interim direction of this Court initially passed on 05.06.1991 (supra), a notice was published in Hindi Daily 'Aaj' on 29.06.1991 by SDI inviting objections from all the Class-4 employees including the petitioners as to why their appointments may not be canceled as there was a Ban operating since 1978 against the recruitment on Group-D positions in the Basic Schools of Rural Areas of Allahabad. The petitioners submitted their reply well within time on 04.06.1991. However, it appears that the respondents did not proceed any further in the matter and instead, the SDI passed order on 05.09.1991 that petitioners should be permitted to work in compliance of the order of the High Court and should be paid salary to avoid any contempt proceeding in the matter. The payment of salary was directed to be ensured by subsequent order of SDI dated 24.10.1991. Ultimately, Writ-A No. 17025 of 1991 came to be disposed of on 09.02.2007 in terms of the following order:

"Heard Sri S.C. Dwivedi, learned counsel for the petitioner and Sri K.S. Shukla, learned counsel for the respondents.

After hearing counsel for the parties it has been brought to the knowledge of the court that in the similar situation an order by this Court in Writ Petition No. 18012 of 1991 has been passed on 15.2.2000. It has been submitted by Mr. Dwivedi that the petitioner's case is also the similar. Though Mr. Shukla who appears for the respondents has submitted that on the basis of the direction issued by this Court a detailed inquiry has been done by the respondents and a conclusion to that effect has come that the total appointment is forge and fictitious . But admittedly no order in writing terminating the services of the petitioner has been passed.

In view of the aforesaid fact the order dated 22.5.1991 and 27.5.1991 are quashed as it does not record any reasons under what circumstances the Assistant Director (Basic ) has directed the Director to cancel all the appointments. It appears that it is a general order terminating the services of various employees. In my view the order passed by the respondents cannot be sustained in the eye of law as principle of natural justice. While terminating the services of the petitioner has to be complied with, insptie of the fact that it on an inquiry the respondents have come to the conclusion that the total appointment is forge and fictitious and has been made on the post which were never sanctioned.

In view of the aforesaid fact the writ petition is disposed of. It is however, open to the respondents to pass appropriate orders regarding the validity of the appointment of the petitioner after giving an opportunity to the petitioner within a period of 6 weeks from the date of production of the certified copy of this order."

7. Thus, order dated 27.05.1991 stood quashed by the High Court, leaving it open for the respondents to pass appropriate orders regarding validity of the appointments of the petitioners and that too after giving opportunity to the petitioners within a period of six weeks from the date of production of certified copy of the order. Copy of the order was presented before the SDI with a copy to all the concerned authorities including DBEO on 17.02.2007. Since the cancellation of the appointments of the petitioners dated 27.05.1991 was quashed by the High Court, the DBEO sought some legal advice from the Chief Standing Counsel, High Court, Allahabad with regard to continuance and payment of their salary. The learned Chief Standing Counsel gave his opinion that in case if appropriate decision, as directed by the Court, is not taken, the petitioners cannot be deprived of their salary in view of the work taken and will be entitled to continue in pursuance of order dated 09.02.2007 until a decision is taken.

8. Acting on the legal advice, the SDI passed an order on 07.05.2007 regarding the working of the employees namely the petitioners against their posts and for preparation of their bills accordingly. However, since no further orders were being passed, the petitioners represented and ultimately on 01.06.2007 an order was passed by DBEO canceling the order of SDI dated 07.05.2007 directing immediate action for non payment of salary to these employees and also not to take any work from such employees. Against this order dated 01.06.2007 which has been filed in the writ petition as Annexure No. 17, the petitioners filed the present writ petition and prayed quashing of the same.

9. While entertaining the writ petition, vide order dated 14.06.2007, this Court passed following order:

"Learned Standing Counsel has accepted notice on behalf of respondent nos. 1 to 6. He is granted six weeks time to file counter affidavit.Rejoinder affidavit may be filed within two weeks thereafter. List after eight weeks.

In the meantime, as far as current salary of petitioners is concerned, qua the same, steps be undertaken for ensuring the same. As Far as arrears of salary is concerned, same shall abide by final order to be passed by this Court.

In these circumstances, it would be expedient that District Basic Education Officer, Allahabad as well as Kaushambi to pass order as per judgment dated 09.2.2007 and in case any decision is taken, copy of the same be appended alongwith counter affidavit."

10. Although the current salary was directed to be paid to the petitioners but the DBEO proceeded to decide the matter finally and during the pendency of present writ petition, passed the order on 25.10.2007 holding the appointment of the petitioners to be void for want of non compliance of the procedure prescribed, want of vacancy and on account of Ban imposed under the Government Order dated 14.06.1978 and 09.11.1980.

11. As the aforesaid order was passed during the pendency of present writ petition, the petitioners amended their writ petition, both on facts and grounds and also amended the prayer seeking quashing of the order dated 25.10.2007.

12. Before proceeding further on the question of challenge being made in the amended writ petition to the order impugned now, it is interesting to note that DBEO, in the operative portion of the order, has held that the appointments of the petitioners are unconstitutional and against the rules and therefore, they are not entitled for any payment of salary. Accordingly, their representation is hereby rejected. The question therefore, is still there as to when the initial order dated 27.05.1057 cancelling the appointment dated 22.05.1997, was quashed by this Court, was it not mandatory and wanting on the part of DBEO, being the appointing and superintending authority in respect of Group-D employees in Basic Schools run by Board, to have passed an order canceling the appointment of the petitioners dated 22.04.1991 and therefore, in the event of such appointment being not cancelled till date, whether a mere holding of appointment by an administrative authority as null and void, will amount to an order canceling the appointment as per the procedure prescribed under the Rules.

13. From the facts referred to above three questions arise for consideration of this Court to resolve the controversy that centers around the validity of appointments of the petitioners:

A. Whether selection and appointment of the petitioners was bad for the reason of any ban on appointments imposed by the State Government ?

B. Whether appointments of the petitioners were bad/invalid for want of vacancies ?

C. Whether selection and appointments of the petitioners were void for non compliance of the procedure prescribed ?

14. Coming first to the point 'A', the contention advanced by learned counsel for the petitioners is based on the Government Order dated 9th September, 1980. This Government Order takes note of the recommendation of Pay Commission of the year 1971-73 on the basis of which two categories of Group 'D' posts were created: one in pay scale of Rs. 16.2.2018-EB-3-2175; and the other in fixed pay of Rs. 165. The regular cadre was of Pay Scale and fixed pay became feeding cadre. The Government Order takes notice of absorption of surplus staff as per norms that provided first for regular cadre being filled in by promotion from fixed pay cadre and so naturally unless the feeding cadre vacancies are there after fulfilling vacancies of regular cadre to satisfy the norm, there was no occasion to make fresh appointments in fixed pay group D cadre. The relevant portion of the Government order (supra) runs as under:

**vHkh gky esa bl lEcU/k esa orZeku osru vk;ksx ls fopkj foe'kZ gqvk vkSj vk;ksx dk ;g lq>ko Fkk fd tks prqFkZ Js.kh deZpkjh :0 165 ds fu;r osru esa dk;Z dj jgs gSa mUgsa :0 165&2&18 n0 jks0&3&215 ds osruekuksa ds fjfDr;kW miyC/k gksus ij [kik;s tkus esa dksbZ vkifRr u gksuh pkfg,A funs'kky; ds v/kZ 'kkldh; i= la[;k vkbZ ¼1½&29517&31&41 ¼42½&78&79 fnukad 14&2&79 esa 'kklu dks lwfpr fd;k x;k gS fd bl le; csfld f'k{kk ijf"kn~ ds v/khu fu/kkZfjr ekud ds vuqlkj vf/kd prqFkZ Js.kh deZpkfj;ksa ds in Qkyrw gSA vr% eq>s vkils ;g dgus dk funsZ'k gqvk gS fd csfld f'k{kk ifj"kn~ ds v/khu :i;k 165&215 ds osrudze ds prqFkZ Js.kh deZpkfj;ksa ds fofHkUu izdkj ds inksa ij lsok fuo`fRr] e`R;q] R;kx i= ;k vU; dkj.kksa ls Hkfo"; esa gksus okyh fjfDr;ksa ij mlh Js.kh ds :0 165&fu;r ekfld osru ikus okys deZpkfj;ksa dh inksUufr }kjk Hkjk tk;s vkSj 165&fu;r ekfld osru ds inksa dks rc rd LFkfxr j[kk tk;s rc rd fd os fu/kkZfjr ekud dh vko';drk ls vf/kd gks of.kZr fLFkfr esa bu vkns'kksa dh izkfIr ds fnukad ds i'pkr~ csfld f'k{kk ifj"kn~ ds fdlh Hkh dk;kZy; esa fdlh prqFkZ Js.kh deZpkjh dh rc rd fu;qfDr lh/kh HkrhZ }kjk ugha gksxh tc rd fd ifj"kn~ esa fu/kkZfjr ekud ls vf/kd in /kkjdksa dk lek;kstu ugha gks tkrkA**

15. Now, therefore, it is relevant to examine the Government order dated 14th June, 1978 to understand whether the ban imposed under the Government Order was conditional or absolute one. The Government order of 1978 on its close examination turns out to be an order necessitated due to taking over of schools run by Municipal Boards, under the U.P. basic Education Act, 1972. Under the Government Order government took responsibility only in respect of those employees who were working in schools run by Municipalities as on 25.07.1972, the date of constitution of U.P. Basic Education Board (U.P. Basic Shiksha Parishad) . Further for Primary Schools (Junior Basic Schools) taken over, it was provided that there was no requirement of Peon and maximum a sweeper/ Safai Karmchari could be appointed and accordingly appointment could be made of a Sweeper. But for Junior High Schools i.e. Senior Basic Schools that were taken over it was provided thus:

** twfu;j gkbZLdwy lk/kU; esa ,d iw.kZ okyd pijklh dh vko';drk Lohdkj dh x;h gS tks Ldwy ds leLr dk;Z dks ftlesa cPpksa dks ikuh fiykuk Hkh lfEefyr gS] djus esa l{ke gksxkA blds vfrfjDr ,sls twfu;j gkbZ Ldwyksa esa ftuds Hkou gS ,d va'kdkfyd pkSdhnkj dh fu;qfDr dh tk ldrh gS ftu Hkouksa esa 'kkSpky; dk Hkh lqfo/kk miyC/k gS] muesa lQkbZ teknkj pkSdhnkj dk ,d va'kdkfyd in Lohdkj fd;k tk ldrk gS] ftls vf/kd ls vf/kd 50 :0 ekfld fu;r ikfjJfed fn;k tk ldrk gSA mDr ekud ds vk/kkj ij bl 'kklukns'k esa ftu inksa ds osruekuksa ds iqujh{k.k ds vkns'k tkjh fd;k tk jgs gSA mlesa ls izkbejh ,oa twfu;j gkbZ Ldwyksa ls lacan prqFkZ Js.kh deZpkfj;ksa ds osruekuksa dk mijksDr iSjk 4 esa fufnZ"V izfdz;k ds vuqlkj iquhf{kr dj fn;k tk;s fdUrq ;fn fdlh fo|ky; esa mijksDr ekud ls vf/kd i{k gS rks mu inks dk mlh ftlds vU; fo|ky;ksa esa lek;ksftr fd;k tk; vkSj fQj Hkh ;fn in vko';drk ls vf/kd gks rks mUgsa lekIr djus dk dk;Zokgh dh tk;A [email protected] **d** esa esgrj] esgrjkuk] pkSdhnkj rFkk vU; blh izdkj ds ;fn dksbZ in mijksDr ekud ds vuqlkj] Qkyrw gksrs gS rks mUgsa twfu;j gkbZ Ldwy ds pijklh ds ij [kikus dk iz;kl fd;k tk; ftlesa fd ;FkklEHko fdlh orZeku iw.kZ dkfjr prqFkZ Js.kh deZpkjh dk lsok lekfIr dh fLFkfr mRiUu gksA

6- vkids }kjk Hkjs x;s izlRkko esa ls dqN inksa dks ftudk mYys[k vuqlXud **{k** ds LraHk 2 esa] osrueku dk iqujh{k.k ugha fd;k x;k gSA izLrqr fd;k ifj"[email protected]; fudk;ksa dks izR;kofrZr djus dk lq>ko fn;k x;k gSA vki mu inksa ds le{k mfpr lq>ko ds vuqlkj rRdky dk;Zokgh djkdj 'kklu dks mlls voxr djkus dk d"V djsaA

7- iz/kkuk/;kfidk ,oa lgk;d v/;kfidk] ulZjh ,oa ekUVsljh Ldwy ds inksa ds lEcU/k esa vkns'k vyx ls izlkfjr fd;s tk;sxsA

8- esa vkns'k foRr foHkkx ds v'kkldh; la[;k bZ&[email protected]@[email protected]&78 fnukad 5 twu] 1978 esa izkIr mudh lgefr ls fuxZr fd;s tk jgs gSA

Hkonh;

mek'kadj

milfpoA"

16. From the bare perusal of the above recitals in the Government Order it is crystal clear that post of Peon was created with the ratio of one Peon per Junior High School (Senior Basic School) and it was provided that where more employees than the norm provided for, were working, they should be adjusted first in schools where there is no one working as Peon and in this process the Sweeper category employees shall also be adjusted. So the endeavour was to absorb all employees working in schools taken over from Municipalities by the Board first to maintain ration of one Peon per school in the category of Junior High School. There is, therefore, no quarrel that one post of Peon was created by the government for each Junior High School.

17. The conjoint reading of the two Government Orders of 1978 and 1980 (supra) it is clear that it provides for two things for sure: one each Junior High School shall have one peon; and two, surplus staff in class four category shall be adjusted first to maintain the above ratio/staffing pattern of group 'D' employee working in Junior High School. So natural corollary is that even after above absorption if vacancy existed that would necessarily be filled by direct recruitment to meet the staffing pattern.

18. The Government then issued another Government Order on 18th May, 1981 in amendment to the Government order dated 07.09.1980 to the extent of ban on account of absorption to maintain staffing pattern just to facilitate appointments on compassionate ground. For convenience to make analysis easier to find answer to the first issue the Government Order dated 18th May, 1981 is reproduced hereunder:

" isz"kd]

mi lfpo

m0 iz0 'kklu

f'k{kk&5 vuqHkkx

y[kuÅ

lsok es]

f'k{kk funs'kd ¼csfld½ ,oa v/;{k

m0 iz0 csfld f'k{kk ifj"kn~

bykgkcknA

y[kuÅ] fnukad % 18 ebZ 1981

fo"k;& mRrj izns'k csfld f'k{kk ifj"kn~ ds fu;a=.kk/khu dk;Zjr prqFkZ Js.kh deZpkfj;ksa ds lEcU/k esaA

egksn;]

mi;qZDr fo"k;d vkids v0 'kk0 i=kad cs0f'k0i0 ¼f'kfoj½ 387&,d&2 ¼1½&81&82 fnukad 6-4-81 ds lUnHkZ esa rFkk 'kklukns'k la[;k 3760&15 ¼5½&30&449&76 fnukad 7-9-8 esa eq>s vkils ;g dgus dk funsZ'k gqvk gS fd mDr 'kklukns'k fnukad 7-9-80 esa csfld f'k{kk ifj"kn~ ds vUrxZr prqFkZ Js.kh deZpkfj;ksa dh lh/kh HkrhZ }kjk fu;qfDr ij yxk, x, izfrcU/k dks csfld f'k{kk ifj"kn~ ds e`rd deZpkfj;ksa ds vkfJrksa dks prqFkZ Js.kh deZpkfj;ksa ds in ij fu;qfDr dk volj iznku fd, tkus ds lEcU/k esa 'kklu }kjk lE;d :i ls fopkj fd;k x;k vkSj ;g fu.kZ; fy;k x;k fd mDr 'kklukns'k fnukad 7-9-80 esa yxs izfrcU/k dks csfld f'k{kk ifj"kn~ ds e`rd deZpkfj;ksa ds vkfJrksa dks prqFkZ Js.kh deZpkfj;ksa ds in ij fu;qfDr fd, tkus ds lEcU/k esa fuEufyf[kr n'kkvksa esa ykxw ugha ekuk tk,xkA

¼1½ e`rd deZpkjh ds dsoy ,d vkfJr dks fu;qfDr dk volj iznku djus ds mn~ns'; ls miyC/k fjDr in ij fu;qfDr dh tk ldsxhA

¼2½ izFke fu;qfDr :0 165& fu;r osrueku ij gh dh tk,xhA

¼3½ fu;qfDr mlh n'kk esa dh tk;sxh tc Lohd`r in tuin fo'ks"k esa miyC/k gksxkA

;g vkns'k foRr foHkkx ds v'kkldh; i= la[;k ;w0 vks0 bZ0 11&1253 fnukad 8-5-81 esa izkIr lgefr ls tkjh fd, tk jgs gSA

izekf.kr izfrfyfi Hkonh;

lgk;d ys[kkf/kdkjh					calr cYyHk ik.Ms;
 
ftyk ifj"kn~ esjB					          mi lfpo   "
 

 

19. Reading all the three Government Orders, 1978, 1980 and 1981 (supra) respectively it clearly emerges that the ban imposed under the Government order was conditional looking to the provision of absorption of surplus staff against vacancies created under the very Government order (1978) as per norms that were also provided i.e. one peon per Junior high School. So the ban was not absolute. The relaxation of 1980 Government Order by Government Order of 1981 to facilitate appointment of persons on compassionate ground does not mean that under the Government Order of 1980 there was absolute ban on appointment of Group-D posts in Junior High Schools. The words and phrase: "rc rd fu;qfDr lh/kh HkrhZ +}kjk ugha gksxh tc rd fd ifj"kn esa fu/kZkfjr ekud ls vf/kd in /kkjdksa dk lek;kstu ugha gks tkrk A (Until the absorption of Group 'D' employees working in any ofice of the Parishad (Board) are not absorbed, no fresh appointment shall be made)" means and includes steps to be taken for recruitment and appointment against existing vacancies after absorption of surplus staff. Therefore, the ban is conditioned by absorption first of existing staff and that is all. Under the circumstances in the absence of detail analysis of absorbed employees and vacancies if existed or not, the cancellation of selection and appointment of the petitioners by one stroke of pen in the garb of the Government Order dated 09.11.1980 was totally unjustified and was rightly struck down by this Court under Order dated 09.02.2007. And so also under the present order dated 25.10.2007 impugned in the writ petition, there is no such statistics given to justify the earlier action which is sought to be ratified by rejecting the representation of the petitioners. In the considered opinion of this Court, therefore, holding the selection and appointment of the petitioners as void on account of ban is clearly unsustainable and is so held.

20. Coming to the next question B, I find that under the Government Order of 1978 norms were laid down of one peon for one Junior High School. The Government order also provided first for absorption of surplus group D staff with whatever nomenclature they were known. The selection and appointment of the petitioner is of the year 1991, so in order to find answer to question no. B, it is necessary to look into the number of Junior High Schools run in rural area of Allahabad (as appointments have been made in rural area Junior High Schools), the working strength in regular cadre and working strength in fixed pay cadre. In this regard this Court had direct the counsel for Basic Shiksha Parishad to furnish details vide order dated 24.4.2018 passed in Writ A No. 27217 of 2007, which runs as under:

"Being confronted with the question of sanctioned strength of Peon/ Group-D employees in Senior Basic Schools under the Basic Education Board, Allahabad in the light of Government Order dated 14.01.1978 and the validity of the recruitment in question against 74 posts in terms of the letter of SDI dated 03.01.1991, Sri Pranesh Dutt Tripathi, learned counsel for the Board seeks time to bring on record the details in terms of the statistics of the number of Senior Basic Schools, number of posts in category of Peon/ Group - D, working strength apart from the petitioners.

He prays for and is granted 10 days' time to bring on record the above details.

List this matter on 07.05.2018."

21. Learned counsel for the Board stated on the next date of hearing that he was not furnished with any such information and sought further opportunity. This Court passed following order:

"Vide order dated 24.04.2018 indulgence was granted to learned counsel for the respondents seeking details pertaining to the number of vacancies in Senior Basic Schools in the category of Peon/ Group 'D' viz-a-viz the working strength at present, however, till date no information has been furnished.

Learned Standing Counsels appearing for Basic Education Board also show their inability in getting necessary instructions in the matter and at this stage, learned counsel for the petitioner points out that there was earlier a letter dated 18.11.2005 addressed to the counsel for U.P. Basic Shiksha Parishad by the District Basic Education Officer, Allahabad in which the vacancy position in terms of the number of schools functioning at Allahabad in the category of Senior Basic Schools and the working strength as on 18.11.2015 was shown.

It is interesting to note that this working strength of 110 in number, includes the petitioners, whereas, the number of schools in the category of Senior Basic Schools is 179 and in view of the relevant Government Order, where norms have been laid down that in Senior Basic School at least one full time Peon will be there, the said Government Order was not complied with upto 18.11.2015.

At this stage, learned counsel for the respondents Sri P.D. Tripathi and Sri B.P. Singh made a request for last opportunity to have instructions in the matter so that they may properly assist the Court.

In the interest of justice, request as prayed for is granted with this understanding and undertaking by the learned counsels for the parties, especially the respondents' counsel that the case under no circumstance will be adjourned on the next date, I am directing this case to be listed on 21.05.2018 peremptorily on the top of Board. "

22. But again no information was given to the Court except two Departmental Letters dated 24.08.1995 and 30.01.1996 that were supplied and which were taken on record. The letter dated 24.08.1995 gives details of Junior High Schools, working strength in regular cadre and so also in fixed pay cadre and existing vacancies in respective cadre as on 24.08.1995 which is reproduced hereunder:

" isz"kd]

lfpo

mRrj izns'k csfld f'k{kk ifj"kn~]

bykgkcknA

lsok es]

ftyk csfld f'k{kk vf/kdkjh]

mRrj izns'kA

i=kd& cs0 f'k0 [email protected]&[email protected]&[email protected]&96 fnukad % 24-8-95

fo"k;& ifj"kn~ ds v/khu lapkfyr fo|ky;@dk;kZy;ksa esa dk;Zjr prqFkZ Js.kh deZpkfj;ksa ds Lohd`r in ,oa vkoafVr dk;Zjr la[;k dk fooj.kA

egksn;]

mi;qZDr ds lEcU/k esa lwP; gS fd mRrj izns'k csfld f'k{kk ifj"kn~ ds fu;a=.kk/khu ifj"knh; fo|ky;ksa esa 1800 in Qkyrw ?kksf"kr djrs gq, 'kklu us i= la[;k [email protected]&5¼5½&[email protected] fnukad 9-9-80 ds vuqlkj prqFkZ Js.kh deZpkfj;ksa ds inksa ij fu;qDr gsrq izfrcU/k yxk;k FkkA 'kklu ds mDr vkns'k esa ;g O;oLFkk dh x;h Fkh fd tc rd bu Qkyrw deZpkfj;ksa dk lek;kstu u gks tk; rc rd lh/kh HkrhZ u dh tk;sA

'kklukns'k la[;k [email protected]¼5½&[email protected]@81 fnukad 16-9-82 ds vuqlkj fu;r osru ds 6798 rFkk fu;fer osru ds 11668 prqFkZ Js.kh deZpkfj;ksa ds inksa dk osru iqujhf{kr fd;k x;k FkkA

foRr fu;a=d csfld f'k{kk ifj"kn~ mRrj izns'k }kjk izkIr ladfyr lwpuk ds vuqlkj orZeku esa fu;r osru ds 6749 rFkk fu;fer osru ds 3346 prqFkZ Js.kh deZpkjh izns'k ds tuinksa esa dk;Zjr gSaA QyLo:i fu;r ,oa fu;fer osrueku esa dk;Zjr Lohd`r ,oa dk;Zjr deZpkfj;ksa dh fLFkfr fuEuor~ gS&

Lohd`r

dk;Zjr

fjDr

1- fu;r osru esa 6798

2- fu;fer osru esa 11668

mDr fLFkfr ds vuqlkj fu;fer osrudze ds 8322 in fjDr gSa tcfd fu;r osru esa ek= 6749 deZpkjh dk;Zjr gSaA

bl laca/k esa mRrj izns'k csfld f'k{kk ifj"kn~ dh cSBd fnukad 2-7-95 esa in la[;k 23 ij lE;d fopkjksijkUr ;g fu.kZ; fy;k x;k fd ekud ds vuqlkj fu;fer osrudze inksa ds vUrxZr fu;r osru ds dk;Zjr deZpkfj;ksa dks lek;ksftr dj fy;k tk;s vkSj tuinokj inksa dk vkoaVu dj fn;k tk;s fLFkfr ls 'kklu dks voxr djk fn;k tk;sA

ifj"kn~ dh cSBd fnukad 20-7-95 esa fy, x;s fu.kZ; ds leknj esa 11668 fu;fer osrudze ds inksa esa ls 1800 Qkyrw inksa dks lekIr djus ds mijkUr 9868 fu;fer osru dzeksa ds inksa dk tuinokj vkoaVu dj fn;k x;k gSA rkfydk layXu gSA ;g fu;fer osrueku ,oa fu;r osru dh vyx&vyx tuinokj vkoafVr la[;k gSA d`i;k jktkKk la[;k [email protected]¼5½&80&[email protected] fnukad 9-9-80 ds vuqlkj fu;r osru ds dk;Zjr prqFkZ Js.kh deZpkfj;ksa dh fu;fer osruekuksa esa tuinksa esa miyC/k fjfDr;ksa ds izfr rRdky lek;ksftr dj bl dk;kZy; dks lwfpr djus dk d"V djsaA

layXu Hkonh;

ious'k dqekj

lfpo]

mRrj izns'k csfld f'k{kk ifj"kn]

bykgkcknA "

mRrj izns'k csfld f'k{kk ifj"kn }kjk lapkfyr dk;kZy;@ fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa ds Lohd`r inksa dk vkoaVu A

dza 0 la0

tuin dks uke

fu;fer osru esa

fu;e osru esa

bykgkckn

(only extract of the table)

23. This above quoted letter takes stalk of the situation as on 24.8.1995 and provides for allocation of posts in Urban and Rural areas separately. Admittedly on this date petitioners were working may be under the interim order, and there is also no dispute about the fact that inspite of the liberty granted to the respondent District Basic Education Officer to pass fresh order after giving opportunity of hearing vide order dated 05.06.1991 no fresh order was ever passed cancelling the appointment of the petitioner. As a matter of fact between 1991-2004 and then till date there is no order passed cancelling the appointment of the petitioners inspite of the fact that they were all appointed by written order and order cancelling their appointment was quashed by this Court vide order dtaed 09.02.2007. So the working strength that is shown under the letter of the Secretary, Basic Shiksha Parishad both for State of U.P. and Allahabad, petitioners stand included and are in fact included .

24. The order of District Basic Education Officer dated 18.11.2005 appended as Annexure 17-C to the amended writ petition also discloses that 110 fixed pay class IV employees were working as on that date even though number of Junior High Schools was shown as 179 in District Allahabad. It means as on 179-110 still 69 vacancies were available there in 1991 for recruitment. Since the appointments as admitted by respondents, were not being made (obviously for misconception about Government Order dated 9.11.1980), by 21.5.2018 when these petitions were heard more class IV employee must have retired. It is absolutely an unfortunate conduct on the part of the respondents not to disclose number of Class -IV employees working in Junior High Schools in rural areas of District Allahabad in regular cadre either on 22.4.1991 when the petitioners were appointed, or on the date when impugned order dated 25.10.2007 was passed. As a matter of fact while taking plea before this Court or while passing the impunged order total emphasis has been on the point of alleged ban on appointments and not on availability of vacancy. Even the undated report of Joint Director of Education which accompanied letter of Joint Director of Education addressed to the Registrar General, High Court Allahabad and is appended to the counter affidavit of District Basic Education Officer as Annexure 3, only speaks of invalid appointment (aniyamit niyukti). The emphasis is on non compliance of procedure and not the non availability of vacancy. Even no statistics is given in any of the two counter affidavits of 2nd and 3rd respondent respectively about the number of fixed pay employees absorbed against regular class IV (Peon) vacancies created at the ratio of one peon per Junior High School in District Allahabad in terms of Government Order dated 14.6.1978 and 09.11.1980.

25. In view of what has been discussed hereinabove, if one takes and considers the letter of District Basic Education Officer dated 18.11.2005 (Annexure 17-C to the writ petition) along the letter of Secretary of District Shiksha Parishad dated 24.8.1995 (quoted in this judgment and was supplied to the court by the counsel of respondent no. 2), one can easily come to conclude that even after 1991 the year of appointments in question, there continued to exist vacant situation in the said category in Junior High Schools of District Allahabad. In 1995, 208 group 'D' regular pay scale position with 48 vacancies fixed pay position stood allocated and in the year 2005 (Annexure 17-C to the writ petition) 110 group D employees are shown to be working with no one working in regular pay-scale. Comparing the two letters of 14.08.1995 (quoted in the judgment) and 18.11.2005 (Annexurre 17-C to the writ petition), it clearly comes out that while 208 Group 'D' vacancies in regular pay-scale were sanctioned by the year 2005 no body was found working and all those working are 110 in number and that too in fixed pay. Then employees, therefore, deserved adjustment in regular pay-scale with still (208-110) 98 vacancies still there in regular pay scale. So if fixed pay 48 vacancies are added it comes out to be 146. Even if Rural and Urban Senior Basic Schools ( Junior High Schools) are clubbed (177 + 25= 102) as per the Government Order dated 27.01.1986 (Appended to supplementary counter affidavit dated 21.05.2018) and sanctioned strength as per Government Order dated 14.06.1978 is applied 202-110=92 vacancies come out to be available for recruitment as in March, 1991. Even question whether these vacancies were there in 1991 or not is clear very much from the letter dated 18.11.2005. It shows only 110working group 'D' employees in March 1991. The Junior High Schools in rural areas as per Government Order dated 27.01.1986 are 177 and, therefore, if working strength 110 is taken to be of rural areas, there were 177-110=67 vacancies existing in regular pay scale. Regular Strength has come to be determined for the first time in black and white with allocation district-wise. So prior to that there was no number-wise classification in regular and fixed pay, I therefore, find quite genuine to hold that total strength being 177, there existed 67 vacancies to be filed in by making direct recruitment. Prior to 1995, it is also presumable that appointments were made directly in fixed pay to be later adjusted in regular pay-scale.

26. Thus, even if appointees namely the petitioners, were not taken into account they could have been adjusted against those very vacancies. So in any case vacancies were there very much available at the time of selection and appointments of petitioners. The letter of District Basic Education officer dated 18.11.2005 further strengthens the case of the petitioners as it shows against 179 Junior High Schools only 110 fixed pay working employees. The letter does not indicate that petitioners were not included in 110 working strength. Even if it is argued that 110 working strength of petitioners were not included as on 18.11.2005, then 69 vacancies did exist to justify selection and appointment of the petitioners.

27. Further the letter of SDI dated 03.01.1991 (Annexure 17 b to the writ petition) discloses that 74 vacancies were there. Even if 14 applications made on compassionate ground were to be allowed, though only 7 were allowed, still 60 vacancies had been available to be filled in by direct recruitment. Thus this Court holds that at the time of selection and appointment of the petitioners there were enough vacancies of Group D employees and so it is absolutely an untenable ground to hold the appointments of the petitioners as null and void for want of vacancies. So point no. B) is also decided against the respondents.

28. Now last but no the least, the question of legality in terms of procedure in selection and appointment of the petitioners framed as question No. C. The impugned order dated 25.10.2007 holds in a quite unequivocal terms " ;kphx.k dks fu;qfDr valoS/kkfud ,oa fu;e fo:) gSa A (The appointment of petitioners are unconstitutional and de hors the rules.)"

29. To hold an appointment as unconstitutional it is to be seen as to whether these appointments fail if put on testing anvil of Article 14 of the Constitution of India. And to hold appointments de hors the rules it is required to be examined what procedure is prescribed that has not been followed.

30. The order under challenge draws foundation of holding appointments bad/void from the report of the then Basic Shiksha Adhikari dated 23.4.2005 in which appointments have been questioned due to proximity of dates like inviting application by 19.4.1991, interview on 20.4.1991, approval on 20.4.1991 and appointments on 22.4.1991. True, proximity of dates raise a little anxiety but only because of that an appointment would by itself not become bad. To hold that proximity of dates in events from selection to appointments was because of malafides on the part of the SDI would be drawing too far an inference in the absence of any direct evidence. Had it been a case of manipulating appointments by the then SDI, then District Basic Education officer would not have participated in the capacity of Chairman to chair the Selection Committee (reference may be had of report of Joint Director of Education accompanying letter dated 24.4.2004 appended along with counter of respondent no. 2); secondly the District Basic Education Officer would not have granted approval to the select list (reference may be had of appointment notification dated 22.4.1991 appended with writ petition); thirdly immediate cancellation would have been by passing a reasoned order as liberty was given by this Court in its initial order dated 05.06.1991 while staying cancellation order in civil misc. writ petition no. 17025 of 1991; and lastly disciplinary action must have been taken against the then SDI who made selection and issued appointment order. However, nothing of the sort happened. Even in the entire counter affidavit filed by the 2nd respondent and 3rd respondent there is no such averment as to what evidence was there to hold that entire selection and appointment was result of an evil design of the then SDI except in enquiry report tht proceeds on hypothetical analysis acknowledging missing of original record. I am, therefore, not convinced with the argument that the then SDI made selection and appointment on some extreneus consideration and to benefit his own men. This ground taken in the impugned order to hold the appointments in question as vitiated in law on the above count is absolutely misplaced and rejected.

31. Arbitrariness has been pleaded as ground of attack with much fanfare during course of argument by learned counsel appearing for respondents but except for the proximity of dates in selection and appointment nothing more could be demonstrated.

32. Yet another dimension, however, was added by saying that in matters of public employment fairness in administrative action is sine qua non. I do not think that there is any quarrel about the said principle but the question is of proof of allegation. Partisan approach or nepotism, if are to be claimed as justified allegations, it must appear on the face of record or must be proved by cogent and convincing material. Advertisement, notice board notification, letter to the office of District Basic Education officer are all, though indicative of fairness in action, are being disputed only for the reason of lack of vide public advertisement.

33. In order to buttress the argument of non compliance of procedure prescribed, learned counsel for the Board has laid much emphasis on Uttar Pradesh Karmchari Varga Niyamawali, 1973 framed by State Government in exercise of Power under Section 19(1) of U.P. Basic Education Act, 1972, adopted with amendment/modification for appointment of other than teaching staff vide resolution of the U.P Basic Shiksha Parishad dated 15.11.1976 notified on 22.12.1976. The relevant clauses of the Niyamawali (hereinafter called Regulations) are reproduced hereunder:

 
"   vU; fu;qfDr;ka
 
1&fu;qfDr vf/kdkjh & uhps nh x;h lwph esa mfYyf[kr inksa ds fy, izR;sd ds lkeus mfYyf[kr izkf/kdkjh mDr in ds lEcU/k esa fu;qfDr vf/kdkjh gksaxs %
 
	¼d½ f'k{kk v/kh{[email protected] v/khf{kdk			v/;{k] ifj"kn~
 
	¼[k½ lgk;d f'k{kk v/kh{kd					lfpo] ifj"kn~
 
	¼x½ iz/kku fyfid rFkk ys[kkdkj				lfpo] ifj"kn~
 
	¼?k½ vU; fyfidh; deZpkjh		           ftyk csfld f'k{kk vf/kdkjh
 
								xzkeh.k {ks= esa &&
 
	¼M-½ prqFkZ Js.kh deZpkjh 			mi fo|ky; fujh{[email protected]
 
									mi fujh{kdk
 
								uxj {ks= esa &&
 
						       f'k{kk v/kh{[email protected]'k{kk v/khf{kdk
 

2& lh/kh HkrhZ ds in & r`rh; vkSj prqFkZ Js.kh ds inksa esa ls izR;sd ds U;wure osrudze ds lHkh inksa ij lh/kh HkrhZ dh tk;sxhA f'k{kk v/kh{[email protected]/khf{kdk ds inksa esa ls f}rh; vkSj r`rh; Js.kh ds ftrus in gksa] muesa ls 40 izfr'kr inksa ij lh/kh HkrhZ ls fu;qfDr dh tk;sxhA vU; lHkh inksa dh iwfrZ izksUufr }kjk dh tk;sxhA

lgk;d f'k{kk v/kh{kd ds in ij lEcfU/kr uxj {ks= ds izkbejh ikB'kkykvksa ds dk;Zjr lgk;d v/;kidksa dks T;s"Brkuqlkj inksUur fd;k tk;sxk ftudh U;wure ;ksX;rk izf'kf{kr Lukrd gksxhA

;Fkk fu;e 1 v/;k; 2 esaa

ifj"kn~ izLrko la[;k 11] fnukad 8&2&86 ds vuqlkjA

ifj"kn~ dk fu.kZ; fnukad 15&11&76 ifji= la0 f'k0 eq0 26377&[email protected],d&&2 ¼150½&76&77] fnukad 22&12&76 }kjk izlkfjrA

ifj"kn~ izLrko la[;k 11] fnukad 8&2&86 ,oa ifj"kn~ ifji= la[;k cs0f'k0 [email protected]/k ¼,d½@4710&4865&86&87] fnukad 26&4&86 rFkk ifj"kn~ izLrko la[;k 14] fnukad 11&11&86 ,oa ifj"kn~ ifji= la[;k cs0 f'k0 [email protected]/k ¼,d½@47162&412&86&87] fnukad 21&1&87 ds vuqlkjA

3& lh/kh HkrhZ dh izfdz;k & lh/kh HkrhZ ds pquko gsrq fu;qfDr vf/kdkjh }kjk LFkkuh; lsok;kstu dk;kZy; ls mi;qDr vH;fFkZ;ksa ds fooj.k ekaxs tk;saxsA lkekU;r% fjfDr;ksa dh la[;k ls vkB xqus uke ekaxs tk;saxsA

4& f'k{kk v/kh{[email protected]/khf{kdk ds in ds fy, izns'k O;kih ifjpkyu ds de ls de pkj lekpkj&i=ksa esa foKkiu Hkh fn;k tk;sxkA

5& lk{kkRdkj ds i'pkr~ fjDr inksa dh la[;k ds cjkcj pqus gq;s vH;fFkZ;ksa dks eq[; lwph rFkk mrus gh ukeksa dh izrh{kk lwph ojh;rk dze esa cuk;h tk;sxhA bu lwfp;ksa ij lfefr ds lHkh mifLFkfr lnL;ksa ds gLrk{kj djk dj LFkk;h vfHkys[k ds :i esa mUgsa lqjf{kr j[kk tk;sxkA

6& ;fn fu;qfDr ds 15 fnu ds Hkhrj dksbZ O;fDr viuk in xzg.k ugha djrk vkSj u fdlh fo'ks"k dkj.k ds vk/kkj ij in xzg.k dh mDr vof/k esa o`f) izkIr dj ysrk] rks ,slh fu;qfDr lksygosa fnu jn~n djds izrh{kk lwph ls ojh;rk dzekuqlj ubZ fu;qfDr;ka dj nh tk;saxhA ijUrq izrh{kk lwph ls ,slh dksbZ fu;qfDr pquko frfFk ls ,d o"kZ dh vof/k esa gh dh tk ldsxhA

7& vk;q lhek & vH;FkhZ dh vk;q pquko okys o"kZ dh 1 tqykbZ dh 18 o"kZ ls de ugha gksuh pkfg,A vf/kdre vk;q 30 o"kZ gSA mDr vk;q lhek esa dksbZ f'kfFkyrk ugha dh tk;sxhA izfrcU/k ;g gS fd lfpo] ifj"kn~ }kjk fdlh vlk/kkj.k vk/kkj ij fopkj djds vf/kdre vk;q lhek ls NwV nh tk ldrh gSA

8& v/;k; 2 ds fuEufyf[kr fu;e vko';d ifj"dkj djrs gq, f'k{k.ksRrj deZpkfj;ksa ij Hkh ykxw gksaxs %

1] 2] 5] 7] 8] 9 rFkk 11A

9& vkj{k.k & fu;ekoyh v/;k; 2 ds fu;e 11 esa vafdr vkj{k.k vU; deZpkfj;ksa ds lh/kh HkrhZ ds ekeyksa esa ;Fkkor~ ykxw jgsxkA

10& 'kSf{kd ;ksX;rk & fofHkUu inksa dh U;wure 'kSf{kd ;ksX;rk fuEuor~ jgsxh %&

¼d½ f'k{kk v/kh{[email protected]/khf{kdk izf'kf{kr LukrdA

¼[k½ lgk;d mifLFkr vf/kdkjh izf'kf{kr baVjehfM,VA

¼x½ fyfid b.VjehfM,V rFkk 30

'kCn izfr feuV dh

fgUnh Vad.k xfrA

¼?k½ prqFkZ Js.kh d{kk ikapA "

34. Vide Clause 1 E, Sub District Inspector of Schools was appointing authority in respect of class IV employees in Group 'D' category in schools in rural areas. Clause-II provides for source of recruitment as direct recruitment. Clauses -III,IV, V and VI prescribed for procedure for selection and appointment. For the purpose of direct recruitment in Group-D category. What is prescribed is that the names shall be invited from the local employment office and generally 8 times more than number of available vacancies. Clause 4 that deals with News Paper advertisement does not apply to the Group-D category. Clause-5 provides for preparation of selection list. Clause -6 provides that in the event a candidate selected and appointed does not join within 15 days then such appointment shall be cancelled and on 16th day and a candidate from the waiting list shall be given appointment. Clause-7 provides for age as minimum 18 years on 1st July of the year of recruitment and maximum age is provided 30 years. The qualification is prescribed in Clause-10 for Group D employees as Class V pass out and the selection committee which is provided under Clause 11 shall be headed by District Basic Education Officer.

35. From the perusal of provisions as contained under the Regulations referred to hereinabove, it is very much clear that there is no provision for publication of group 'D' vacancy in newspaper or even notifying the vacancy on notice board. Meaning thereby the advertisement in newspapers publication is not prescribed. So far as question of calling names of employment office is concerned, it is very much on record that vide letter dated 12.4.1991 inviting application, the applicants were required to apply alongwith their registration certificate with the local employment office and the copy of this letter was also forwarded to DBEO and Asst. Sub District Inspectress of Girl School. So it cannot be said that applications were not properly invited. The purpose behind calling names from the employment office is that those registered may get an opportunity to apply and participate in the open selection process. The purpose would be met if only those candidates are invited who are registered with Local Employment Office. There was, therefore, substantial compliance of the provisions more especially in the face of the fact that there was no complaint from the public that XYZ has been denied participation as employment officer failed to recommend name or that employment office was not put to notice.

36. The petitioners have filed a document of receipt issued by Account Executive of News Daily 'Prayagraj Times' with regard to advertisement issued on 15.4.1991. This document has not be termed as forged or fake in the counter affidavits filed by respondents. The reference to the alleged letter dated 11.6.1999 of public information officer about 'no advertisement' under the impugned order has not been filed nor, does it find mention in the counter affidavits to enable the petitioners to deny the same. In Pare 45-J of the amended writ petition following plea is taken.

"45J. That the finding of the Joint Director of Education, is absolutely incorrect that no publication has been done in respect of the appointment in question. In fact, aforesaid posts were duly advertised in Hindi Daily viz. Prayag Raj Times on 15th April, 1991, which is having wide circulation. It is further submitted that the payment of this advertisement was done by Dr. Inspector of Schools. Vide cheque no. A22/50-15593 issued in favour of aforesaid newspaper on 25.5.91. True copy of the payment receipts issued in favour of Prayag Raj Times is being annexed herewith and marked as Annexure no. 17e to this writ petition."

37. No counter affidavit was filed to amended writ petition but at the time of hearing learned counsels for the District Basic Education Officer and for Basic Shiksha Parishad pleaded that counter affidavit filed to the amendment application may be read in reply to amended writ petition as well. Para 3 of the amendment application carries para 45a to 45 r incorporated in the writ petition. Para 3 of the amendment application is replied in para 8 of the counter affidavit thus:

"That averment made in Para 3 of the amendment application is an unscrupulous exercise having been made on the behest of the petitioners, since every thing stated in the para under reply are on previous records, no new relevant fact has been stated. Even if some thing is missing it ought to have been brought on record in past 20 years. At this stage an effort to bring some more irrelevant facts on record is meaningless. The petitioners have made no effort to reply to the illegalities pointed out by the respondents on the basis of which the selection have been declared illegal except brazenly harping that no opportunity has been provided. As regards opportunity at the initial stage the inquiry by the department has been given, at the later stage the Hon'ble Court had given full opportunity to petitioners to make their submissions. An enquiry was directed by the Court through the Joint Director of Education who conducted a thorough inquiry as per the Direction after giving full opportunity to the petitioners and all concerned and submitted the report on 24.04.04. At the third stage the BSA made a thorough inquiry giving full opportunity to the petitioner and rendered his decision on 25.10.07 declaring the selection as illegal and furzy."

38. Thus the document evidencing the factum of publication of advertisement remains undenied and so there is nothing to disbelieve the same. one may not loose sight of a fact that in matters of educational institutions prior to the year 1994 not much emphasis was on publication in news papers, especially, where schools situate in rural areas. The schools that were being run in remote area of villages, there used to be no circulation of news papers. In schools when one requires a person to work as peon, his job would be to dust the furnitures and clean and arrange water pots and fill the same and help teachers. Conveyance used not be to there and so local villager or resident in terms of a school teacher's native used to be considered more useful persons and so notice board notification of vacancy was taken as enough. Even teachers in recognized institutions against short terms vacancies, where notice board advertisement were regularly made, used to be appointed. It is after the Full Bench judgment in Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and Others, 1994 (3) UPLBEC 1551 that news paper publication of vacancy was taken as rule of necessity but with prospective effect. Speaking for himself and Justice N.B.Asthana, Justice V.N.Khare (as His Lordship then was) held thus:

"Since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of Article 16(1) of the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The provisions contained in sub-paragraph (3) of Paragraph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution, does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. Such kind of notice is an eye wash for the requirement of Article 16 of the Constitution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution and may process the application of its own candidate for the appointment against the short term vacancy I, am therefore, of the view that the procedure for notifying the short term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two News Papers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange."

39. Concurring with the above Justice G.P.Mathur (as His Lordship then was) held " The proper course would, therefore, be that in addition to intimation of vacancy to the D.I.O.S. the same should also be advertised in one news paper having circulation in the State or at least in the region" (Vide para 65).

40. Thus, the legal position emerged that in future even the short term vacancy shall be advertised by news paper publication in addition to notice board. This judgment was delivered on 12th July, 1994 and ruled for procedure to be followed onwards.

41. Although the full bench judgment relates to recognized private management institution but there also payment was made by the government and institution were recognized by U.P. Board of High Schools and Intermediate under Intermediate Education Act, 1921. The institution in this case are those taken over by Basic Education Board under U.P. Basic Education Act, 1972. These employees are also not the Government employees. Although there has been advertisement of posts in question in this case but even if there was only notice board notification, the appointment being prior to full bench decision, it would not vitiate the appointment even on touch stone of Articles 14 and 16(1) of the Constitution. While referring to the above judgment, I am conscious of the fact that judgment is in respect of institution under a different Act but it is on a principle of the public advertisement that this court made first pronouncement to bring complete halt to any procedure of notice board advertisement taking departure from the prescribed procedure of notice board notification under the recruitment rules. I am only taking an aid but at the same time I expect that the relevant rules/regulations in respect of these institutions in question should also suitably be amended to ensure vide publication of the vacancies sought to be filled in from open market in the light of the present day mass print media coverage, its circulation and much more awareness even at village Panchayat level.

42. The constitution of the selection committee involved both the District Basic Education Officer as well as Sub District Inspector of Schools and also Assistant Sub District Inspector of Schools, selections and appointments were made after approval of the District Basic Education Officer also and, therefore, in the opinion of the Court there was no violation as such of the procedure prescribed. Had it been that Assistant Sub Inspector of Schools was not incharge of girls school or at that time so and so was Assistant Sub Inspectress of Girls School whose participation was desired, the situation would have been different but there is no such stand either under the impugned order or in the two counter affidavits. Since there was proper invitation of application alongwith registration certificate of Local Employment Exchange, proper notification of the vacancy through notice board and valid constitution of selection committee, it all resulted in proper and valid selection and appointment of the petitioners vide appointment order dated 22.4.1995 and I do not see any fault in the procedure to the extent of voidness to hold selection and appointment as bad. I, therefore, conclude that the selection and appointments of the petitioners cannot be faulted with even on the point of alleged non compliance of procedure prescribed.

43. Learned counsel for the petitioner has relied upon various authorities:

"A. (2008) 1 SCC 798- Nagendra Chandra and Others v. State of Jharkhand and Others.

B. (2008) 3 SCC 481 - District Basic Education Officer & Another v. Dhananjay Kumar Shukla & Another.

C. (2015) 15 SCC 422- Bishwanath Das & Others v. State of Jharkhand and Others.

D. 2017 (2) ADJ 582 - Satya Prakash v. State of U.P. And Others.

E. 2018 (1) ADJ 821 (DB) - Daya Shankar Upadhyaya v. State of U.P. And Others."

44. In (A) Nagendra Chandra's case, there was rule prescribing advertising vacancies in various paper which is not so in the case in hand. In (B) District Basic Education Officers' case, the qualification was prescribed and it was attempted to be surpassed by applicant's further proceeding on medical leave and there is nothing like that in the present case that petitioners did not possess the requisite qualification nor there is any proof of violation of any prescribed procedure. In (C) Bishwanath Das's case, general law was discussed that appointments should not be made in violation of statutory rules and I think there is no quarrel about this principle but what is required to be proved is that a specific procedure is prescribed and that was violated. Impugned order has been passed by making general alleataions that in making appointments in question SDI played bad role and that prescribed procedure was not followed, however, there is no finding returned how SDI acted badly or arbitrarily and what specific procedure that is prescribed, was not followed. In the absence of any proof and finding on that score, allegations are bald and flimsy with no legs to stand. Similarly again in (D) Satya Prakash's case , it had come to be admitted position that particular rule was not followed and so also in the case of (E) Daya Shankar Upadhyay, , fraud was proved on record. Here neither there is plea of fraud taken nor, any proof thereof has been recorded under the impugned order except a conclusion that appointments were fraudulent and that too without there being any iota of evidence. So in my opinion none of the above authorities are of any help to the respondents in the facts and circumstances of the present case.

45. Further under the impugned order it has come that the original records are missing and so authority proceeded to decide the matter as per regulations prescribed. Law is applied to the facts to test the correctness of an action on legal principles. Unless facts are determined no matter can be decided sighting rules of procedure. Instead of searching for the record or verifying the correct vacancy position position at relevant point of time the authority has proceeded to form opinion on hypothetical analysis of facts and on that basis has come to record that selection and appointment process was de hors the rules. In any domestic enquiry adjudicatory authority is hide bound in law to ensure that charge pleaded by the department is proved. Principle of preponderance of probability has relevance but algebraical approach to presume a value to arrive at a derived conclusion, is certainly not permissible even in such enquiries. Any misadventure of this kind will render an employee defenceless as he is not the architect of the selection proceedings, may be, he is an ultimate beneficiary. This is what has happened in the present case and cannot be approved of. Keeping the records safely and preserved is the duty of concerned officials and if lost class IV employee cannot be made to suffer unless of course there is finding that records have been made to be lost at the end of beneficiaries, but this is not the case of respondents either.

46. I further find that till date there has been no cancellation of appointment of the petitioners dated 22.4.1991. The earlier cancellation dated 27.5.1991 having been quashed by the High Court vide judgment dated 09.02.2007 in writ petition no.17025 of 1999, the third respondent was duty bound to pass fresh order cancelling the appointment. The order impugned is rejection of representation made by the petitioners for payment of salary during pendency of the writ petition. In service jurisprudence there is always contract of employment between the employer and employee and if entered by a written order, it can only be terminated by a specific written order. An administrative authority is not a court exercising any judicial power to declare an action null and void to treat the appointments as cancelled and, therefore, in the considered opinion of this Court, the contract of appointment still subsists and petitioners are entitled to continue and draw salary.

47. As a matter of fact the order dated 01.06.2007 impugned initially in the writ petition is null and void in the absence of any order cancelling the appointment. Rejection of representation would not amount to annulment of the contract of employment as well. However, since I have already held that selection and appointments of the petitioners are lawful and valid and reasons contained in the order dated 25.10.2017 (Annexure 17 F of the writ petition) are absolutely untenable, the order dated 25.10.2007 and order dated 01.06.2007 (Annexure 17 F and 17 to the writ petition ) are hereby quashed. Petitioners are held entitled to all consequential relief.

48. Writ petitions are accordingly allowed, cost made easy.

Order Date :- 16.08.2018

Sanjeev