Pramod Kumar Pandey And 5 Others vs The District Inspector Of Schools ...
2019 Latest Caselaw 6249 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 684 of 2019
 
Appellant :- Pramod Kumar Pandey And 5 Others
 
Respondent :- The District Inspector Of Schools And Another
 
Counsel for Appellant :- Raghwendra Prasad Mishra,Arvind Kumar Mishra,Sri A.N.Tripathi,Senior Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Govind Mathur,Chief Justice
 
Hon'ble Vivek Varma,J.

CIVIL MISC DELAY CONDONATION APPLICATION NO. 1 OF 2019

This appeal is barred by limitation from 103 days.

Having considered the facts stated in the application seeking condonation of delay, we are satisfied that the appellant had justifiable reason to state that for a bonafide reason, he was prevented from filing the appeal in time, accordingly, the delay in filing the appeal is condoned.

ON APPEAL

1. This Special Appeal arises against the judgment and order dated 15.3.2019 passed by learned Single Bench in Writ -A. No. 16669 of 2001 (Pramod Kumar Pandey and others Vs The DIOS and others) whereby the learned Single Bench arrived at conclusion that ad-hoc appointments of appellant-petitioners in short term vacancies were not made in accordance with procedure prescribed in the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981 under para 2(3) (ii) and (iii).

2. In brief, Shakeldeha Inter College, Post Shakeldeha, District Chandauli, (in short referred as the 'Institution') is an aided and recognized Institution under the UP Intermediate Education Act, 1921 and the regulations framed thereunder are fully applicable. The U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 is also applicable in the said Institution.

3. According to the appellant-petitioners seven posts of short term vacancies in L.T. Grade teachers fell vacant at the Institution. The Committee of Management (Authorized Controller) sought permission of District Inspector of Schools (hereinafter referred as DIOS) to make ad-hoc appointments on short term vacancies. DIOS did not reply. Vacancies were then advertised in daily news paper. Fifteen days time was allowed to prospective candidates to submit their applications. Thereafter, the Authorized Controller vide resolution dated 5.10.1997 and 12.10.1997 resolved to appoint appellants as Assistant Teachers on ad-hoc basis in the vacancies caused due to ad-hoc promotion. The appointment letters were issued to the appellants and then documents of all appellants were forwarded to DIOS on 17.10.1997 seeking approval of aforesaid seven ad-hoc appointment made on short term basis.

4. The appellant-petitioners joined the Institution in the Month of October, 1997 on various dates. However, salary was not paid to the appellants from State Exchequer by the District Inspector of Schools. The appellant-petitioners filed a writ being Writ Petition No. 23482 of 2000 before this Court, which was disposed off vide order dated 13.3.2001 directing the DIOS to pass a reasoned order in accordance with law. Pursuant thereto, DIOS passed an order dated 25.4.2001 holding that ad-hoc appointments made by the Management were contrary to the provisions of UP Secondary Education Services Selection Board Act, 1982 as amended in 1995 and the same had been made without following the procedure prescribed under the statute, therefore the same were illegal and appellant-petitioners were not entitled for payment of salary. It is noteworthy that the order dated 25.4.2001 records that the vacancies in dispute were not short term vacancy but substantive vacancy. The said order of DIOS was challenged by the appellant-petitioners before this Court by filing Writ A No. 16669 of 2001, wherein learned Single Bench came to the conclusion that ad-hoc appointments of appellant-petitioners made on short-term vacancies were not made in accordance with procedure prescribed in the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981 under para 2 (3)(ii) and (iii) and there was clear infraction there of, hence the appointment of appellant-petitioners were illegal and void ab-initio. The State has not disputed the correctness of the conclusion reached by learned Single Bench. We, therefore, proceed on the premise that the vacancies were short term.

5. Against the said order present appeal has been filed.

6. Heard learned counsel for the parties and perused the record.

7. The question considered by learned Single Bench was whether the ad-hoc appointment of appellant-petitioners on short term vacancy were made according to procedure prescribed under the UP Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981.

8. To take the discussion forward, it would be apposite to extract the relevant para of the UP Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981, which reads as under:-

1- Short title and commencement- (1) This Order may be called the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981.

2- Procedure for filling up short term vacancies- (1) If short term vacancy in the post of a teacher, caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the institution, by promotion of the permanent senior most teacher of the institution, in the next lower grade. The management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.

(2)Where any vacancy referred to in clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in clause (3).

(3)(i) The Management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the manager of the institution along with the particulars given in Appendix 'B' of this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-4993/XV-7-1 (79)-1981, dated July 31, 1982, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution.

(ii)The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the manager to the District Inspector of Schools for his prior approval.

(iii)The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.

(iv)On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure to communicate his decision within seven days of the receipt of papers by him from the manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.

Explanation -For the purpose of this paragraph-

(i)the expression 'senior most' teacher means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained graduate (L.T.) grade, or Trained undergraduate (C.T.) grade or J.T.C. or B.T.C. grade, as the case may be;

(ii)in relation to institutions imparting instructions to women, the expression 'District Inspector of Schools'; shall mean the 'Regional Inspectress of Girls Schools';

(iii)'short term vacancy' means a vacancy which is not substantive and is of a limited duration.

9. The question framed by the learned Single Bench in paragraph no. 117 of the impugned judgment was as under:-

" 117. In this backdrop, I have now to examine whether ad-hoc appointments of petitioners on short-term vacancies were made following strictly the procedure laid down in Second Order."

10. Addressing the aforesaid question, learned Single Bench found that the papers relating to the appointment of the appellant-petitioners, were sent to the DIOS, for his approval on 17.10.1997. But the appointments were made before sending those papers for approval.

11. In light of such facts, learned Single Bench held that the appointments are illegal, and subsequent deemed approval of the appointment of the appellant-petitioners, would not validate their appointments.

12. The findings of Learned Single Bench were contrary to the settled position of law. There is good authority in point, recorded by this Court, holding that in case prior approval for appointment is required, the incumbent gets the status of Teacher only when the approval is granted or deemed to have been granted.

13. Learned Single Bench has relied upon various pronouncements of this Court as well as of Apex Court viz U.P. Avas Evam Vikas Parishad and another Vs Friends Co-operation, Housing Society Limited and another, AIR 1996 SC 114; Life Insurance Corporation of India Vs Escorts Ltd and Others, AIR 1986 SC 1370, Ms Shailja Shah Vs Executive Committee, Bharat Varshiya National Association and Another, 1995 (25) ALR 88, Director of Education and others Vs Gajadhar Prasad Verma, AIR 1995 SC 1122; Shiv Gorakh Nath Charitable Society, Kanpur and Others Vs Cantonment Board, Kanpur and others, 1997 (3) ALR 616; Vivek Srivastava Vs Union of India and others, 2005 (3) ESC (All) 1790; Special Appeal No. 331 of 1992, DIOS Vs Naresh Chandra decided on 20.3.2006; Union of India & Another Vs Raghuwar Pal Singh, 2018 (7) ADJ 16.

14. In our considered opinion, the aforesaid judgments have no relevance to the present case. These judgments have not dealt with the main issue involved in the present case of approval/deemed approval granted subsequent to the appointment under the scheme of the Second Difficulty Order (The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981.

15. The issue in the instant controversy is the validation of an earlier appointment by a subsequent deemed approval under the (Removal of Difficulties) (Second) Order, 1981.

16. In the case of Lalit Mohan Misra and Another Vs. District Inspector of Schools, reported in 1979 ALJ 1025, it has been held that even if appointments have been made without approval of the DIOS, the same will be effective only from the date when the approval has been granted or deemed to have been granted. Another Division Bench of this Court in the case of Abhay Pal Singh Vs State of UP and others, reported in 2009 (4) ADJ 704 has also reiterated the aforesaid legal position and has upheld the same view. The relevant extract of the judgment is quoted below:-

"23. It is true that paragraph 2 (3)(ii) of the Second Removal of Difficulties Order requires the Manager to forward the names and the particulars of the candidate selected to the DIOS for granting prior approval and the appointment can be granted to the selected candidate only after receipt of approval from the DIOS. In the present case the Committee of Management forwarded the papers to the DIOS after giving appointment to the appellant. In our opinion the appointment cannot be said to be illegal on this ground. The effect of this would be that the appointment will take effect from the date the DIOS grants approval or from the date it will be deemed to have been approved by the DIOS.This is what has been observed by a Division Bench of this Court in Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and another, 1998 (3) ESC 2006 (All) :

''The next question that falls for consideration is whether the appointment of the petitioner-appellant could still stand invalidated on the ground that it was made without prior approval of the District Inspector of Schools. Sri Yatindra Singh placed reliance on a Division Bench decision of this Court in A.K. Pathshala v. Smt. M.D. Agnihotri, 1971 All LJ 983, wherein it was held, on construction of Section 16-F(1) of the U.P. Intermediate Education Act, 1921, that appointment without prior approval by the Competent Authority would, in the eye of law, be no appointment. The ratio of the said decision as held by a subsequent Division Bench in Lalit Mohan Misra v. District Inspector of Schools, 1979 All LJ 1025, is that a ''person gets the status of a teacher when requisite formality is completed''. The relevant observations are as under :

''Without approval the person does not get the status of a teacher even though the approval is to be followed by formal letter but in the absence of formal letter the person gets the status of a teacher after approval to the appointment is given by the District Inspector of Schools. The appointment of a person as a teacher becomes effective only from the date approval is given and even if a person is allowed to work before that the same has no recognition under the U.P. Intermediate Education Act.''

Paragraph 2(3)(iv) of the Second Removal of Difficulties Order is not phrased in a prohibitory language as was the language used in Section 16-F(1) of the U.P. Intermediate Education Act, 1921. The words 'prior approval' have been used in sub-clause (ii) of paragraph 2(3) of the Second Removal of Difficulties Order and a conjoint reading of sub-clauses (ii), (iii) and (iv) of clause (3) of paragraph 2, no doubt, leads to an inescapable conclusion that the appointment would be issued under the signature of the Manager only on the approval having been communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval is deemed to have been accorded as visualised by sub-clause (iii) of clause (3) of paragraph 2 of the Second Removal of Difficulties Order. However, appointment if made prior to approval or deemed approval, would become effective from the date of approval or deemed approval is held by the Division Bench of this Court in Lalit Mohan Misra. There is nothing on the record to connote that pre-requisite conditions attracting deemed approval were not satisfied in the instant case.''

(emphasis supplied)"

24. It was the specific case of the petitioner-appellant before the DIOS that the short-term vacancy had been intimated to the DIOS on 22nd June, 1995 and after granting appointment to the appellant on 25th August, 1996 as an Assistant Teacher against the short-term vacancy, the names and the particulars of the candidate selected and other relevant information was sent by the Committee of Management to the DIOS for approval which communication was received in the office of the DIOS on 28th August, 1996. The impugned order does not mention that the aforesaid communication sent by the Committee of Management was not received in the office of the DIOS on 28th August, 1996. The petitioner-appellant has also categorically stated this fact in paragraph-7 of the writ petition and in reply to this paragraph all that has been stated by the DIOS is that approval could not be granted by the DIOS as short-term vacancy did not exist on the post of Assistant Teacher in the College when the appellant was appointed.

25. We have, therefore, to proceed on the footing that the relevant papers regarding selection and appointment of the appellant had been received in the office of the DIOS on 28th August, 1996. In accordance with paragraph 2(3)(iii) of the Second Removal of Difficulties Order, the DIOS shall be deemed to have given his approval since he did not communicate his decision within seven days of the receipt of the particulars. The inevitable conclusion that follows is that the appointment of the appellant as an Assistant Teacher in the College stood approved on 5th September, 1996 and in terms of the decision of this Court in Ashika Prasad Shukla (supra) he shall be entitled to his salary from the said date.

17. In the present case, it is admitted fact that the papers relating to selection and appointments of the appellant-petitioners were sent to DIOS by the Management on 17.10.1997 for his grant of approval after having issued letters of appointment to the appellant-petitioners. It is also not in dispute that the DIOS did not bestow his consideration on these papers within statutory specified period of seven days. As such the appointment of appellant-petitioners stood approved by deemed fiction of law and in view of the law settled by this court in above authoritative pronouncements (Lalit Mohan Misra and Another (supra), and Abhay Pal Singh (supra)].

18. Thus, on this count learned Single Bench was not justified in holding that the appointment of the appellant-petitioners were illegal and, therefore, not entitled for regularization.

19. In view of the law laid down by Division Bench in Lalit Mohan Misra and Another (supra) and Abhay Pal Singh (supra), the order passed by learned Single Bench dated 15.3.2019, cannot be sustained. It is accordingly set aside.

20. The order dated 13.3.2001 passed by DIOS is also set aside.

21. The matter is remitted to the competent authority to consider the entire controversy afresh including the claim for regularization under the provision contained in Section 33-G of UP Secondary Education Services Selection Board Act, 1982.

22. Accordingly, the present Special Appeal is finally disposed off with the direction to the Competent Authority to consider the claim of the appellant-petitioners in accordance with law. The Competent Authority shall call upon the appropriate report and record from the office of DIOS, Chandauli as also from the Committee of Management of the Institution. Interim order, operative before the dismissal of the writ petition i.e. prior to 15.3.2019 is continued till the final decision is taken by the Competent Authority.

23. It is expected that the aforesaid exercise shall be completed and final decision shall be taken by the Competent Authority within a period of four months from the date a certified copy of this order is placed before it.

24. With aforesaid observation and direction, the appeal is disposed off finally.

Order Date :- 1.8.2019

RavindraKSingh

(Vivek Varma, J.) (Govind Mathur, C.J.)