Niraj Diwedi And Another vs State Of U.P. Thru Secy.Secondary ...
2018 Latest Caselaw 4101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 9102 of 2018
 

 
Petitioner :- Niraj Diwedi And Another
 
Respondent :- State Of U.P. Thru Secy.Secondary Edu. Civil Sectt.Lko.&Ors.
 
Counsel for Petitioner :- Saurabh Shankar Srivastav
 
Counsel for Respondent :- C.S.C.,Amarendra Kumar Bajpai
 

 
Hon'ble Irshad Ali,J.

1: Heard learned counsel for the petitioners, learned Standing counsel on behalf of the respondent No.1 to 4 and to Sri A.K. Bajpai, learned Advocate who appeared alleging himself to be representing the Committee of Management of Lucknow Christian College, Lucknow.

2: Factual matrix of the case is that Lucknow Christian Inter College is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921. The institution is receiving aid from the State Government, therefore, the provision of U.P. Act No.24 of 1971 is applicable to the said institution. The institution is a minority institution, therefore, in view of the embargo under Section 30 of the U.P. Act No.5 of 1982, the provisions of U.P. Secondary Education Services Selection Board Act, 1982 are not applicable.

3: Two vacancy on the post of Assistant Teacher L.T. Grade (Mathematics and General) came into existence due to retirement of two Assistant Teachers L.T. Grade.

4: The Committee of Management resolved to make regular selection on the post of Assistant Teacher L.T. Grade in the aforesaid institution in its meeting held on 23.10.2013. The Committee of Management of the College authorized the Manager of the institution to take prior permission to initiate selection proceeding on the post of Assistant Teacher L.T. Grade. The Manager of the institution requested to the District Inspector of Schools to grant prior permission to initiate selection on the aforesaid post.

5: The District Inspector of Schools vide order dated 2.11.2011 accorded permission to initiate proceeding by issuing advertisement as per the regulations, inviting applications from the eligible and qualified candidates against the existing vacancies.

6: Thereafter, after the prior permission to initiate selection process by advertising the vacancies, the Manager of the institution published advertisement in two prominent newspapers on 30.6.2014, whereby applications were invited from the eligible and qualified candidates to apply for selection on the post of Assistant Teacher (Mathematics) and Assistant Teacher (General).

7: In pursuance to the advertisement issued, the petitioners along with the other candidates applied, being fully eligible and qualified, for the selection and appointment on the post of Assistant Teacher (Mathematics) and Assistant Teacher (General) of the institution.

8: A selection committee was constituted in accordance with the provisions contained under the regulations framed under U.P. Intermediate Education Act, 1921 governing the minority institution recognized under the aforesaid provision. The selection committee selected the petitioner No.1 on the post of Assistant Teacher (General) and the petitioner No.2 on the post of Assistant Teacher (Mathematics).

9: The Manager of the Committee of Management of the institution forwarded the relevant papers in regard to the selection of the petitioner on 9.9.2014 to the District Inspector of Schools, Lucknow for the grant of approval as required under Section 16-FF of the U.P. Intermediate Education Act, 1921.

10: The District Inspector of Schools did not pass order on the papers submitted by the Manager of the Committee of Management, then the petitioners made representations before the District Inspector of Schools to accord approval to ensure payment of salary.

11: The Committee of Management without approval of the District Inspector of Schools, issued appointment letter to the petitioners on 9.9.2014 to join on the post of Assistant Teacher (Mathematics) and Assistant Teacher (General).

12: In view of the Government Order issued on 19.12.2000, the original records pertaining to the selection and appointment were placed before the Regional Level Committee for its sanction for the purposes of disbursement of salary to the petitioners.

13: The Regional Level Committee on the papers submitted by the Manager of the Committee of Management after satisfying possession of requisite qualification and other eligibility criteria of the petitioners, passed an order on 19.9.2014 directing the District Inspector of Schools to pass an appropriate order of approval to the selection of the petitioners in terms of Section 16-FF of the U.P. Intermediate Education Act, 1921.

14: The respondent No.7 made a compliant vide letter dated 22.9.2014 to the Special Secretary of the Chief Minister. In pursuance thereto, a letter was issued on 29.9.2014, whereby direction was issued to the District Magistrate to conduct an enquiry in the matter inasmuch as Deputy Director of Education recommended to the Regional Level Committee to review its order taken on 19.9.2014.

15: Taking into consideration the dispute, the records were summoned by the Additional Director of Education at Allahabad and the same were placed by the respondent No.3 to the Additional Director of Education at Allahabad, but no order was passed by him.

16: The Regional Level Committee on the pressure exerted upon him, reviewed its earlier order dated 19.9.2014 and by means of an order dated 14.5.2015 has recalled the order dated 19.9.2014.

17: The petitioners feeling aggrieved by the order dated 14.5.2015, filed Writ Petition No.3296 (S/S) of 2015 primarily on the ground that the Regional Level Committee had no power to review its own decision.

18: This Court, vide order dated 29.5.2015, stayed the operation of the order passed by the Regional Level Committee on 14.5.2015.

19: Meanwhile, a Government Order was issued on 28.8.2015 clarifying that sub-Sections (3), (4), (5) and (6) of Section 16-FF of the U.P. Intermediate Education Act, 1921 are specific in nature in regard to grant of approval for the appointment on the post of Teachers of a minority institution that the District Inspector of Schools is competent to grant approval and the Regional Level Committee has no role to play in the matter of Teacher of a minority institution.

20: The petitioners also claimed that on submission of papers, more than 1 month has expired, thus, in view of Regulation 17(g), the appointment of the petitioners stood approved by operation of law, thus, they are entitled to get salary.

21: In the aforesaid writ petition, an interim order was granted directing the respondents to pay salary to the petitioners, in spite of that, no salary was paid to them, then Contempt Petition Nos.661 of 2016 and 663 of 2016 were filed before this Court.

22: Thereafter, by exercise of power under Section 3(3) of the Payment of Salaries Act, 1971, salary of the petitioners were released.

23: The Principal of the institution Sri Rohit Spring, whose writ petition was connected along with the writ petition of the petitioners, withdrew his Writ Petition No.2594 (S/S) of 2015 to pursue an alternative remedy available to him under Section 16-E (10) of the U.P. Intermediate Education Act, 1921. The writ petition was dismissed with the liberty to pursue the remedy available in law.

24: Thereafter, the writ petition of the petitioners was connected along with Writ Petition No.2952 (S/S) of 2015 in regard to the matter of similarly situated Lecturers of the institution in question.

25: Sri Rohit Spring, Principal of the institution, thereafter approached to the Government vide application dated 11.4.2016.

26: The respondent No.3 on the direction issued by the State Government, submitted the relevant record and vide letter dated 13.4.2016, detailed report was submitted before the Government.

27: Two of the Lecturers of the institution in question namely, Sri Vipin Kumar Mishra and Vishal Yadav being aggrieved by the non-payment of salary, non-grant of approval and aggrieved by the order of review passed by the Regional Level Committee, filed Writ Petition No.10753 (S/S) of 2016 before this Court, which was finally disposed of with the direction to take decision as per law within a period of two months from the date of receipt of a certified copy of the order.

28: In pursuance to the order passed by this Court, the District Inspector of Schools, Lucknow passed a detailed order on 28.5.2016, whereby approval was accorded to the aforesaid two Lecturers.

29: In the matter of Principal by constituting a special Enquiry Committee of 3 Officers, an order was passed on 22.12.2016 by the State Government and the Committee was constituted who passed an order on 3.1.2017, holding the appointment of the petitioners to be legal and directed for continuation of work and to ensure payment of salary regularly.

30: The Principal Sri Rohit Spring due to non compliance of the order dated 3.1.2017 filed Writ Petition No.23501 (S/S) of 2018, which has also been heard along with this writ petition, whereby direction has been issued by this Court to the State Government to pass an appropriate order by exercising power under Section 16-E(10) of U.P. Intermediate Education Act, 1921 within a period of 2 months from the date of production of certified copy of the order.

31: In the case of the petitioners, it has further been brought on record, a copy of the noting made on the salary bill dated 30.3.2017 that as per the order of the Court, it is not possible to make the payment.

32: Submission of the learned counsel for the petitioners is that there is no order of this Court restraining any authority from making payment of salary to the petitioners, thus, non-payment of salary to the petitioners is illegal and arbitrary.

33: He next submitted that under the provision of Regulation 17(g), in case after submission of papers for the approval before the District Inspector of Schools, no order is passed within a period of one month, then the appointment is deemed to have been approved by the competent authority.

34: Learned counsel for the petitioners submitted that here in the present case, papers were duly submitted before the District Inspector of Schools on 9.9.2014 and even after expiry of one month i.e. 9.10.2014, no order of approval was accorded by the competent authority as required under Section 16-FF of the U.P. Intermediate Education Act, 1921, thus, it is deemed that the approval has been accorded. Even otherwise under the direction issued by this Court, by exercise of power under Section 3(3) of the Payment of Salaries Act, 1971, the petitioners have been paid salary, therefore, his submission is that stoppage of salary of the petitioners cannot be termed to be legal on the part of the District Inspector of Schools and Finance and Accounts Officer of the office of District Inspector of Schools.

35: He next submitted that for the payment of salary, the petitioners have approached to the District Inspector of Schools by making several representations, but no consideration whatsoever has been made. He further submitted that the petitioners have been victim of the dispute between the Ex-Manager Late Sri S.W. Prasad and the respondent Nos.7 and 8, who were fighting with each other with ill-motive, so that after cancellation of appointments, the complainants/respondent Nos.7 and 8 may get success to make fresh appointments.

36: Learned Standing counsel and Sri A.K. Bajpai, learned counsel for the private respondent submitted that the Committee of Management of Sri S.W. Prasad was not legally constituted Committee of Management, thus, constitution of selection committee by him is not a validly constituted selection committee, thus, the entire selection proceeding cannot be termed to be valid. They next submitted that once the selection of the petitioners are not in accordance with law, then they are not entitled to get salary from the State Exchequer.

37: They further submitted that the Regional Level Committee after due consideration of the material on record, has recalled the order dated 19.9.2014, whereby direction was issued to the District Inspector of Schools to pass an order of approval. They next submitted that the Government Order dated 28.8.2015, wherein direction is issued that in view of the provisions under sub-Clause (3), (4), (5) and (6) of Section 16-FF of the U.P. Intermediate Education Act, 1921, the competent authority is the District Inspector of Schools to grant approval cannot be termed to be a Government Order issued in consonance with the provisions contained under the Act of 1921.

38: After having heard the rival contentions of the learned counsel for the parties, I perused the material on record.

39: To resolve the controversy involved in the present writ petition, the provision of Regulation 17 of Chapter-II of the Regulations framed under U.P. Intermediate Education Act, 1921 is quoted below:

"17. The procedure for filling up the vacancy of the head of institution and teachers by direct recruitment in any recognised institution referred to in Section 16-FF, shall be as follows:

(a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shall be advertised by the manager of the institution in at least one Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e., whether temporary/permanent) and number of vacancies, descriptions of post (i.e., Principal or Headmaster, Lecturer or L.T., C.T. or J.T.C./B.T.C. grade teacher including the subject or subjects in which the lecturer or teacher is required), scale or pay and other allowances, experience required minimum qualification and age prescribed, if any, for the post and prescribing a date which should not ordinarily be less than two weeks from the date of advertisement) by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned.

Notes-(1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised.

(2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management.

(b) All applications shall be made in the form prescribed by the management and shall contain all necessary particulars about qualifications, teaching experience and other activities and be accompanied by certified copies of all the necessary certificates and testimonials. The management may charge cost of the application form not exceeding the amount referred to in Clause (2) of Regulation 10.

(c) An application by a person employed in an institution and applying for a post elsewhere or in the same institution shall not be withheld by his employer but shall be forwarded to the authority concerned immediately.

(d) All applications received from the candidates shall be serially numbered and entered in a register and particulars of the candidates noted under appropriate columns. The candidates to be called for interview shall be seven for each post (the number of applicants, permitting). The Manager shall intimate by registered post all the members of the Selection Committee as well as all such candidates as are called for interview, the date, time and place of selection at least ten days before it is held. The Selection Committee will hold the selection accordingly. If on account of any unavoidable reason, the expert selected by the Committee of Management under Clause (a) of the proviso to sub-section (1) of Section 16-FF is unable to attend the selection on the date fixed the meeting of the Selection Committee shall be postponed.

(e) The provisions of Clauses (e) and (f) of Regulation 10 and those of Regulations 11, 12 and 16 shall mutatis mutandis apply to selections made under this regulation.

(f) A panel of experts consisting of fifteen or more persons selected from category (a) referred to in Regulation 14 shall be drawn by the Director for each region and be sent to the Regional Deputy Director of Education concerned, The Regional Deputy Director of Education shall out of the said panel communicate the names of three experts in a sealed cover to the management through its Manager as soon as he receives any request for supply of names of experts from him. The regional panel of experts shall, however, remain valid until it is replaced by a new one.

(g) किसी पद के लिए समस्त अभ्यर्थियों का साक्षात्कार कर लिए जाने के पश्चात चयन समिति का सभापति किये गए चयन की कार्यवाहियों पर दो प्रतियों में एक टिप्पणी तैयार कराएगा जिसमे चुने गए अभ्यर्थी का नाम तथा प्रतीक्षा सूचि के दो अन्य अभ्यर्थियों के नाम उल्लिखित किये जायेंगे, इस प्रकार तैयार के गई टिप्पणी पर चयन समिति के सभापति तथा अन्य सदस्य हस्ताक्षर करेंगे और अपना अपना पूर्ण नाम, पद नाम और पता तथा दिनांक उल्लिखित करेंगे, सभापति इस टिप्पणी की एक प्रति तथा विनियम 10 के खंड (च) में निर्दिष्ट विवरण की एक प्रति धारा 16 - चच के अधीन यथा अपेक्षित अनुमोदन के लिए, यथास्थिति, संभागीय उप-शिक्षा निदेशक या निरीक्षक को तुरंत अग्रसारित करेगा, सम्बंधित अभिलेखों के प्राप्त होने के दिनांक के एक माह के भीतर यथास्थिति संभागीय उप शिक्षा निदेशक या निरीक्षक, उन पर अपना निर्णय दे देंगे और ऐसा न करने पर अनुमोदन प्रदान कर दिया गया समझा जायेगा"

40: Upon perusal of the aforesaid regulation, it is evident on the face of it that to fill up the vacancy of the post of Principal or Teacher of a minority institution, advertisement is to be made in the two well known newspapers; one in Hindi and other in English.

41: In pursuance to the aforesaid regulation, the Committee of Management resolved to make selection on the post of Assistant Teachers and authorized to the Manager of the Committee of Management to initiate selection proceeding by issuing advertisement in one Hindi and one English newspaper and in pursuance thereof, advertisement was issued in the newspapers widely circulated in the State level one in Hindi and other in English inviting applications from the eligible and qualified candidates and in accordance with the regulations, a selection committee was constituted and on the basis of quality point marks, recommended the name of the petitioners by placing them in the merit list for the grant of appointment after obtaining approval from the District Inspector of Schools as prescribed under Section 16-FF of U.P. Intermediate Education Act, 1921.

42: On perusal of the record, it is transpired that the Committee of Management in utter disregard of the provisions contained under Section 16-FF, issued appointment letter to the petitioners without getting approval from the competent authority on 9.9.2014. Under Section 16-FF, a specific rider is imposed that no appointment can be made without approval of the District Inspector of Schools on the post of and Assistant Teachers.

43: In this regard, Division Bench of this Court in the case of Ashika Prasad Shukla Vs. State of U.P. while considering the appointment and the question of approval, has considered the issue in regard to the approval, wherein it has been laid down that in case the appointment letter has been issued without approval, then the same shall be treated to be an appointment w.e.f. the date of approval has been accorded to the selection.

44: In the present case, in view of the provisions contained under Section 17(g) of the regulations framed under Chapter-III of the U.P. Intermediate Education Act, 1921, it has been provided that in case on submission of papers, for the period of 1 month no approval has been accorded, then it is deemed that the approval has been accorded.

45: It is further recorded that the papers in regard to the selection of the petitioners were submitted before the District Inspector of Schools on 9.9.2014 and one month period expired on 9.10.2014, therefore, due to non-passing of an order within a period of one month, it is deemed that the approval has been accorded, thus, the irregularity which was committed by the Manager of the institution in issuing the appointment letter stands corrected after expiry of one month period due to non-passing of the order at the level of the District Inspector of Schools as required under Section 16-FF of the U.P. Intermediate Education Act, 1921.

46: Another question before this Court is that whether the Regional Level Committee is empowered to exercise its power in regard to the grant of financial sanction in view of the provision contained under the Government Order dated 19.12.2000 or not. In this regard, by means of a Government Order dated 28.8.2015, the State Government clarified that since under sub-Sections (3), (4), (5) and (6) of Section 16-FF of the U.P. Intermediate Education Act, 1921, it has clearly been stipulated that in regard to the grant of approval for the appointment of the Teachers of a minority institution, there is a specific provision which empowers the District Inspector of Schools to grant approval, the matter is not required to be placed before the Regional Level Committee.

47: In view of the above, any order passed in respect of approval of a Teacher of a minority institution by the Regional Level Committee is wholly without jurisdiction.

48: In regard to the dispute of Committee of Management, this Court has recorded specific finding in the case of the Principal of the institution which is decided today. Paragraphs 44, 45, 46, 47 and 48 of the judgment and order of Writ Petition No.23501 (S/S) of 2018 is quoted below:

"44: In the present case, moot question is that whether the complaint lodged by Dr. R.R. Lyall alleging himself to be the Manager is a recognized committee or not. In this regard, I perused the material on record which has been made available to this Court under the order passed by this Court.

45: On examination, it is found that a dispute was raised in regard to the constitution of Committee of Management with Dr. S.W. Prasad as Manager, which was decided vide order dated 9.10.2014 by the Deputy Registrar, Firms, Societies and Chits whereby the Committee of Management of Dr. S.W. Prasad was held to be the valid Committee of Management. The order of the Deputy Registrar, Firms, Societies and Chits holding the Committee of Management of Dr. S.W. Prasad has never been challenged before any Forum, thus, has attained finality in the eyes of law, therefore, the Regional Joint Director of Education while proceeding to review the earlier order would have considered that whether Dr. R.R. Lyall is a Manager of a Committee of Management, duly recognized under the relevant provisions of law or not. In this regard, there is no finding at the level of Regional Joint Director of Education to the effect that Dr. R.R. Lyall is duly elected and recognized Manager of Committee of Management. In absence of such finding, the application for review of the earlier order on the behest of Dr. R.R. Lyall, alleging himself to be Manager was not entertainable on the ground that the appointment of the petitioner has been made by a Committee of Management duly elected and recognized. On perusal of the order dated 9.10.2014 of the Deputy Registrar, Firms, Societies and Chits, it is well established that the Committee of Management of Dr. S.W. Prasad who has made selection of the petitioner is duly elected and recognized Committee of Management.

46: Regional Level Committee while considering the review application was required to record finding first on the point that whether the Committee of Management of Dr. R.R. Lyall is legally constituted Committee of Management to arrive at the conclusion that the selection of the petitioner was made by the duly elected and constituted Committee of Management or not. On perusal of the order dated 13.5.2015 it is apparent on the face of it that there is no finding returned on the order passed by the Deputy Registrar on 9.10.2014.

47: This Court on the basis of material available on record, holds that the Committee of Management of Dr. S.W. Prasad was the Committee of Management, which was duly elected and recognized Committee of Management, therefore, the selection made by the duly elected and recognized Committee of Management cannot be held to be illegal on the score of complaint lodged by Dr. R.R. Lyall who was not recognized Manager of the Committee of Management at the time of selection nor has challenged the order of the Deputy Registrar, Firms, Societies and Chits dated 9.10.2014.

48: It is further recorded that no material was placed by Dr. R.R. Lyall in regard to the grant of recognition of the election of the Committee of Management headed by him as Manager of the Committee of Management, therefore, the basis of challenge of selection of the petitioner on the post of Principal on the score that the Committee of Management of Dr. S.W. Prasad was not validly elected Committee of Management, has no force."

49: On perusal of the aforesaid paragraphs, it is well established that at the time of initiation of proceeding of selection, Committee of Management with Dr. S.W. Prasad as Manager was duly elected and recognized Committee of Management.

50: On overall consideration of the material on record and finding recorded above, it is evident on the face of record that the District Inspector of Schools, Lucknow at no point of time, has taken notice of the aforesaid provision of law nor has recorded reasons in regard to the stoppage of payment of salary to the petitioners. Once taking into consideration the grievances of the petitioners payment of salary has been made to them till the month of December, 2016, no reason appears to this Court to stop the payment of salary of the petitioners from the month of January, 2017 till date.

51: In view of the nature of controversy and the material on record, this Court is of the opinion that in case the matter is placed before the District Inspector of Schools, Lucknow to consider and pass appropriate reasoned speaking order on the basis of observation made above, justice would be met.

52: Accordingly, this writ petition is finally disposed of with the direction to the District Inspector of Schools, Lucknow to consider and pass appropriate reasoned speaking order in regard to the payment of salary to the petitioners in light of the observation made above within a period of 2 months from the date of production of certified copy of this order.

53: It is however made clear that in case the District Inspector of Schools, Lucknow finds the case of the petitioners in the four-corners of the finding recorded above, he shall release the payment of salary to the petitioners inasmuch as arrears of salary within a further period of 3 weeks from the date of passing of order by him.

Order Date :- 04.12.2018

Gautam