Rajesh & Others vs D.I.O.S.& Others
2018 Latest Caselaw 3460 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 07.09.2018
 
Delivered on 31.10.2018
 
Court No. - 34
 

 
Case :- WRIT - A No. - 8574 of 2001
 

 
Petitioner :- Rajesh & Others
 
Respondent :- District Inspector of Schools & Others
 
Counsel for Petitioner :- Anil Bhushan,Adarsh Bhushan,Ram Krishna Mishra,Ramesh Upadhyay,Rateesh Singh, Bhanu Pratap Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Bhanu Pratap Singh, learned counsel for the petitioners, learned Standing Counsel for respondents and perused the record.

2. This writ petition under Article 226 of Constitution of India has been filed by three petitioners namely Rajesh, Dr. Ram Shanker Sharma and Shiv Ram being aggrieved by order dated 25.01.2001 passed by District Inspector of Schools, Agra (hereinafter referred to as "DIOS") holding appointment of petitioners illegal and thereby denying approval to said appointment.

3. The facts in brief giving rise to present writ petition are as under :

4. Damodar Inter College, Holipura, Agra (hereinafter referred to as "College") is a Secondary Educational Institution governed by the provisions of Uttar Pradesh Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921") and for the purpose of payment of salary, it is governed by Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act, 1971"). Recruitment of teaching staff in the aforesaid College is governed by provisions of Uttar Pradesh Secondary Education Services Selection Boards Act, 1982 (hereinafter referred to as "Act, 1982").

5. It is said that Mohar Mani Singh, Assistant Teacher (L.T. Grade) was given ad hoc promotion as Lecturer (Economics) with approval of DIOS granted on 21.9.1994 and he joined as ad hoc Lecturer on 01.10.1994. Similarly, Krishna Dutt Dwivedi and Deo Dutt Sharma, Assistant Teachers (L.T. Grade) were also promoted as Lecturers on ad hoc basis on 01.07.1990 and 01.07.1989 respectively. The resultant short term vacancies of Assistant Teachers (L.T. Grades) were sought to be filled in by Management by following procedure prescribed in Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981 (hereinafter referred to as "Second Order") since no suitable candidates was available in the College and none was recommended by Uttar Pradesh Secondary Education Services Selection Board (hereinafter referred to "Board").

6. The vacancies were advertised in daily newspaper "Aaj" dated 28.5.1997 and "Dainik Jagran" dated 29.5.1997. Qualification of petitioners are as under :

Sl.No.

Name of Petitioner

Qualification

Rajesh

M.A., M.Com. & B.Ed.

Dr. Ram Shanker Sharma

M.A.(Hindi), M.A. Sanskrit, B.Ed., Ph.D. (Hindi)

Shiv Ram

M.A. (Economics) & B.Ed.

7. Selection was held on 22.6.1997. Petitioners were selected and by appointment letters dated Nil, copies whereof are filed as Annexures 4, 5 and 6 respectively, petitioners were appointed as Assistant Teachers (L.T. Grade). However, it was mentioned in the appointment letter that their appointment shall be effective from the date of approval granted by DIOS. In para 16 of writ petition it is however said that appointment letters were issued on 26.12.1997. It is also said that documents pertaining to selection were forwarded to DIOS on 25.11.1997 and thereafter letters of appointment were issued on 26.12.1997. Petitioners joined College on 01.01.1998.

8. DIOS vide letter dated 09.01.1998 made following queries from the Management :

^^1- laLFkk esa fu/kkZfjr tu'kfDr ds vkns'k dh Nk;kizfr tks vki }kjk izekf.kr gks layXu ugha gSA

2- lekpkj i=ksa esa fd;s 1 foKkiu dh ewyizfr layXu ugha gSA

3- laLFkk esa vkj{k.k dksVs ds vUrxZr dk;Zjr ,oa vo/kkfjr inksa dh fLFkfr Li"V ugha gSA

4- izLrkfor fu;qfDr esa nks fu;qfDr;ka lh/kh HkrhZ ds inksa ij dh x;h gSA mDr inksa ds vf/k;kpu ek0 f'k0 dh vk;h m0iz0 bykgkckn dks izsf"kr fd;s x;s vFkok ugha\ Li"V ugha gSA

5- lh/kh HkrhZ ds inksa ij izcU/k ra= }kjk fdl fu;e ds rgr rnFkZ fu;qfDr dh x;h gSA Li"V djsaA

6- vYidkfyd :i ls fjDr in ewyr% foKku] izn'kZd Fkk vkSj fnukad 1-7-94 ls fjDr n'kkZ;k x;k gS mDr in lgk;d v/;kid okf.kT; ds in esa fdl fu;e ds rgr Hkjk x;k gS vkSj rhu o"kZ ds mijkUr Hkjs tkus dk D;k vkSfpR; gSA ;g Li"V djsaA

7- izLrkfor fjfDr;ksa ds izfr fdrus vH;fFkZ;ksa ds vkosnu i= izkIr gq, vkSj vH;fFkZ;ksa dks lk{kkRdkj dh lwpuk fdl fjfr ls nh xbZ gS rFkk lk{kkRdkj esa fdrus vH;FkhZ mifLFkfr gq, bldh iqf"V gsrq dksbZ Hkh izek.k i= layXu ugha gSA

8- ;g p;u xq.kkad lwph layXu ugha gSA

9- izdkf'kr foKkiu esa in vkjf{kr mEehnokj ls Hkjk tkuk fufnZ"V gksus ds mijkUr Hkh mDr in lkekU; vH;FkhZ ls fdu ifjfLFkfr;ksa esa Hkjs x;sA bl lEcU/k esa viuh lqLi"V vk[;k iqf"V izek.kksa lfgr miyC/k djk;saA**

"1. Any photocopy showing the strength prescribed in the institution, which may be certified by you, is not enclosed.

2. The original copy of one advertisement published in the newspapers is not enclosed.

3. The position as to the posts prescribed and functional in the institution under the reservation quota is not clear.

4. In course of the proposed appointments, two appointments have been made on the direct recruitment posts. It is not clear whether or not the requisitions for the aforesaid posts were sent to U.P. Secondary Education Service Selection Board, Allahabad.

5. Please specify under which rule the adhoc appointments were made by the administration on the posts meant for direct recruitment.

6. The short term vacancy was basically meant for Science Instructor, and the same has been shown vacant since 01.07.1994. Please specify under which rule the said post was filled as that of Assistant Teacher (Commerce) and what justification is there for filling the same after 3 years.

7. No proof is enclosed evidencing how many applications from the candidates were received against the proposed vacancies; by which mode the candidates were communicated about the interview; and how many candidates appeared in the interview.

8. The list of cumulative marks (Gunaank) obtained for this selection process is not enclosed.

9. In what circumstances were the posts, even after being notified in the advertisement to be filled from amongst reserved category candidates, filled from amongst general category candidates. In this connection, please furnish your categorical report with proofs."

(English Translation by Court)

9. Management submitted reply vide letter dated 16.4.1998 as under :

^^1- laLFkk esa tu'kfDr fu/kkZfjr ugha gq;h gSA dbZ ckj dkxt izi= izLrqr fd, ijUrq foHkkxh; mis{kk ds dkj.k tu'kfDr fu/kkZfjr ugha gks ldh gSA fo|ky; esa dksbZ Hkh u;s in ij fu;qfDr ugha dh x;h gSA lHkh ij iwoZ esa dk;Zjr v/;kid ds izksUufr ds fjDr txg ij gh fu;qfDr dh x;h gSA

2- lekpkj i=ksa esa foKkiu dk ewy izfr bl i= ds lkFk layXu gSA

3- laLFkk esa vkj{k.k dksVk iwjk gSA

4- izLrkfor fu;qfDr esa ftu nks inksa ij lh/kh HkrhZ dh x;h gS ftl le; foKkiu fd;k x;k Fkk rFkk fu;qfDr dh x;h Fkh ml le; rd og Qfyr fjfDr esa FkhA blfy, vf/k;kpu dk iz'u gh ugha mBrkA

5- inksUufr inksa ij izcU/kd us fu;qfDr dh Fkh ml le; os in Qfyr fjDr ds vUrxZr FkhA ,oa ml le; izcU/kd dks fu;qfDr djus ds iw.kZ vf/kdkj FksA

6- vYi dkfyd :i ls fjDr in foKku izn'kZd dk Fkk foKku izn'kZd vFkZ'kkL= ds izksUufr ds le; ftyk fo|ky; fujh{kd us gesa ;g dg dj larq"V dj fn;k Fkk fd ge okf.kT; v/;kid vkidks ,y0Vh0 xzsM mlh in ij miyc/k djk nsaxsA gekjs ;gka okf.kT; izoDrk ds LFkku ij vFkZ'kkL= izoDrk dh izksUufr ftyk fo|ky; fujh{kd us Jh eksgj eu flag dks dj fn;k FkkA gkbZ Ldwy d{kkvksa esa okf.kT; i<+kus ds fy, dksbZ Hkh v/;kid miyC/k ugha gSA

7- izLrko fu;qfDr esa ftuds vkosnu i= gesa izkIr gq;s Fks mu lHkh dks ;w0ih0lh0 Mkd }kjk cqykok i= Hksts x;sA

8- p;u izfdz;k fof/kor fu;ekuqlkj dh x;h gSA fjDr inksa ij ;ksX; vH;fFkZ;ks dks lquk x;k gSA

9- izdkf'kr foKkiu esa Li"V :i ls izdkf'kr fd;k x;k Fkk fd vkjf{kr mEehnokj miyC/k u gksus ij ,oa ;ksX; vH;FkhZ miyC/k u gksus ij lkekU; tkfr vH;fFkZ;ksa }kjk mDr in Hkjk tk;sxkA tks vkj{k.k oxZ ds mEehnokj lk{kkRdkj esa mifLFkr gq, os iw.kZ vgZ ugha FksA blfy, mDr inksa dks lkekU; tkfr ls Hkjk x;kA**

"1. The strength in the institution is not fixed. Several times, papers were produced but due to the negligence of the department, the strength could not be fixed. No appointment on any new post in the school has been made. In all cases, appointments have been made only on the promotional vacancies of the teachers working earlier.

2. The original copy of the advertisement published in the newspapers is enclosed with this letter.

3. The reservation quota in the institution is full.

4. The two posts to which direct recruitments were made in course of the proposed appointments, were consequential vacancies upto the time advertisement was notified and appointments were made. Hence, there arises no question for requisition.

5. The manager had appointed the persons on the promotional posts. At that time, those posts were under consequential vacancies, and at that time the manager had full rights to make appointments.

6. The short term vacancy was of Science Instructor. At the time of promotion of Science Instructor(Economics), the District School Inspector of Schools(DIOS) had satisfied us by saying that he would provide us a Commerce Teacher in LT Grade on the same post. The District School of Inspector(DIOS) had in our school promoted Shri Mohar Man Singh as Lecturer(Economics) in place of a Lecturer(Commerce). There is no teacher available to impart instructions to High School classes in commerce

7. All those persons from whom the applications were received for the proposed appointments, were sent call letters through UPC Post.

8. The selection process has been duly conducted as per rules. Competent candidates have been interviewed for the vacant posts.

9. In the advertisement, it was clearly mentioned that in case of non-availability of any competent candidate belonging to reserved category, the said post shall be filled with a candidate from general category. The candidates from reserved category who appeared in the interview were not completely qualified. Hence, the said posts were filled with the candidates from the general category.

(English Translation by Court)

10. Thereafter, DIOS vide letter/order dated 01.08.1998 stated that ban has been imposed upon appointment by Additional Director of Education vide letter dated 09.6.1995, therefore, approval to petitioners' appointment cannot be granted. Aforesaid order was challenged by petitioners in Writ Petition No.25369 of 1998, which was allowed vide judgment dated 30.10.2000 holding that ban was not applicable to short term appointments and therefore, DIOS was directed to pass a fresh order within two months.

11. Management then requested DIOS to pass appropriate order vide letter dated 16.11.2000 and reminder was also sent on 28.11.2000. DIOS then passed impugned order dated 25.01.2001 holding that promotions of Deo Dutt Sharma and Krishna Dutt Dwivedi were made prior to 1988 and by virtue of Section 33-A of Act, 1982, the aforesaid promotions having been regularised, vacancies have turned into substantive, therefore, short term appointments against those vacancies were not permissible. Similarly, Mohar Mani Singh had retired on 30.06.2000 and aforesaid vacancy has also become substantive and cannot be filed in by Management. It is also stated that there is no document to show that substantive vacancies were notified to Board or any information was given to DIOS before filling in the said vacancies. Management has also not taken care of reservation and at the time of interview on 22.6.1997, Rules were not followed, inasmuch as, merit list was not prepared and appointment letters were issued without date.

12. Writ petition has been contested by respondents 1 and 3 by filing a counter affidavit sworn by Dr. Mukesh Chandra as DIOS. It is stated that Krishna Dutt Dwivedi and Deo Dutt Sharma were regularised by Deputy Director of Education, Agra vide order dated 30.01.1995 hence there was no short term vacancy due to promotion of aforesaid two teachers as Lecturers on and after 30.01.1995. With respect to Mohar Mani Singh it is stated that he retired on 30.06.2000, therefore, vacancy became substantive on 01.07.2000.

13. On behalf of petitioners, a supplementary affidavit has been filed stating that during pendency of this writ petition, another Writ Petition No.3348 (SS) of 2012 was filed before Lucknow Bench of this Court which was decided vide judgment and 14.02.2013. Pursuant thereto circular dated 19.7.2013 was issued by Director, Secondary Education. DIOS considered question of payment of salary to petitioners and passed an order on 07.10.2016 permitting payment of salary with effect from 01.08.2016 subject to result of Writ Petition No.8574 of 2001 (present writ petition). It is also submitted that petitioners working since 1998 and in the meantime Mohar Mani Singh retired on 30.06.2000, therefore in view of the fact that petitioners are continuously discharging duties and order of payment of salary has already been passed by DIOS on 07.10.2016, therefore, they may not be disturbed at this stage and otherwise order passed by DIOS, impugned in the writ petition, be set aside.

14. Learned counsel for petitioners, however, when questioned, could not dispute the averments made in para 5 of counter affidavit that Krishna Dutt Dwivedi and Deo Dutt Sharma, who were promoted as Lecturers were regularized on 30.01.1995 vide order passed by Deputy Director of Education and their vacancies as Assistant Teacher (L.T.Grade) became substantive. In fact, in para 5 of rejoinder affidavit petitioners have admitted this fact that these two teachers were actually regularized. That being so, averments made in para 5 read with para 7 of writ petition that vacancies of Assistant Teacher, (L.T.Grade) due to promotion of Krishna Dutt Dwivedi and Deo Dutt Sharma were short term vacancies when advertisement was made by Management on 28.5.1997 clearly stand belied and it is evident that it is a false statement made in the writ petition. In fact, petitioners were aware that vacancies of these two teachers namely Krishna Dutt Dwivedi and Deo Dutt Sharma ceased to be short term vacancies, having become substantive after their regularization on 30.01.1995, but this fact has not been disclosed in the writ petition but concealed. In order to take advantage, petitioners in paras 7 and 8 of writ petition have claimed vacancies to be short term and a cloak of valid appointment has been attempted to be put on a patently illegal appointment of petitioners 2 and 3 hence they are liable to be non-suited for this reason alone.

15. It also could not be disputed that a substantive vacancies occurred on the post of Assistant Teacher (L.T.Grade) due to regularization of promotion of Krishna Dutt Dwivedi and Deo Dutt Sharma vide order dated 30.01.1995. In such vacancies, ad hoc appointment could have been made only by following the procedure prescribed in Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order") and not by following the procedure prescribed in Second Order. It is also well settled that an ad hoc appointment if made without following procedure prescribed under Section 18 of Act, 1982 read with Removal of Difficulties Order, it is patently illegal and would not confer any right upon incumbent either to hold the post or claim salary in view of the law laid down in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 wherein Court has held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab initio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by Court in Prabhat Kumar Sharma (supra) is as under:

"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."

16. Again in para 11 of the judgment the Court held as under:

"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution." (emphasis added)

17. This decision has been followed and reiterated in Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others JT 2009 (10) SC 309 wherein Court has held as under:

"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State." (emphasis added)

18. Therefore, so far as appointments of petitioners 2 and 3 are concerned, I have no manner of doubt that these appointments are patently illegal, void ab initio and hence order of DIOS insofar as declaration of appointment of petitioners 2 and 3 being illegal and not valid for approval, cannot be faulted with and impugned order does not warrant interference to this extent.

19. Now coming to the matter of appointment relating to petitioner 1, it has not been disputed that in 1994 promotion of Mohar Mani Singh as Lecturer was ad hoc. Therefore, there was a short term vacancy as Assistant Teacher (L.T.Grade). The appointments could have been made by following the procedure prescribed in Second Order. Management made selection, forwarded papers to DIOS and when he failed to convey any decision within prescribed period, the deeming approval provision came to apply and hence Management got power to make ad hoc appointment, which was made vide order dated 26.12.1997. The factum that subsequently in 2000, when on 30.6.2000 Mohar Mani Singh attained age of superannuation, retired and vacancy became substantive, would not render earlier appointment made on short term vacancy, invalid. Therefore, impugned order passed by DIOS insofar as it relates to petitioner 1 cannot be sustained.

20. The writ petition is partly allowed. The impugned order dated 25.01.2001 passed by DIOS insofar as it pertains to petitioner 1 is hereby set aside and he is directed to treat appointment of petitioner 1 made against short term vacancy vide appointment letter dated 26.12.1997 to be valid and if petitioner 1 has worked continuously pursuant to aforesaid order, pay salary in accordance with law. The order dated 25.01.2001 however is confirmed in respect of petitioners 2 and 3.

Order Date :- 31.10.2018

KA