Triveni Nath Mishra vs State Of U.P. And Others
2019 Latest Caselaw 1729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 58
 

 
Case :- WRIT - A No. - 15524 of 2012
 

 
Petitioner :- Triveni Nath Mishra
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Radha Kant Ojha,Niraj Upadhyay,R.C.Tiwari,S K Dwivedi,S.N. Pandey
 
Counsel for Respondent :- C.S.C.
 

 
And
 

 
Case :- WRIT - A No. - 22049 of 2012
 

 
Petitioner :- Smt. Geeta Gupta
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. While entertaining the writ petition, following orders were passed in the matter on 29.3.2012:-

"The contention of the petitioner is that in pursuance of a direction given by this Court on 08.04.2003 in Writ Petition No. 30967 of 1991, his services were regularised under Section 33-B of the U.P. Secondary Education Services Selection Board Act, 1982 vide order dated 09.10.2006 passed by the Joint Director of Education, Allahabad. It is submitted that a writ petition was filed by Smt. Uma Gupta for regularisation with reference to which, an order was passed by this Court in Special Appeal No. 463 of 2010, whereby it was directed that the case of Smt. Uma Gupta, who was also a teacher in the same institution, be considered by the Regularisation Committee constituted under Sections 33-B and 33-C of the U.P. Secondary Education Services Selection Board Act, 1982. It is contended that even though there was nothing in the order passed by the Division Bench to re-open the old and settled cases of regularisation, the Regularisation Committee reopened the case of regularisation of the petitioner and in an arbitrary manner came to the conclusion that there were no posts available on which the petitioner and two other Assistant Teachers could be regularised. The submission of the petitioner is that the conclusion drawn by the Regularisation Committee that there was no vacant post available at the time of appointment/regularisation of the petitioner is manifestly erroneous, as no such ground was taken earlier when direction was issued to consider regularisation of the petitioner.

Considering the facts and circumstances of this case and particularly the fact that the petitioner has been working for last more than 20 years, and was drawing salary, I am of the opinion that the petitioner has made out a prima facie case for interim protection.

In view of the aforesaid background, till the next date of listing, the effect and operation of the order dated 05.03.2012 passed by the Regional Level Committee, (respondent No.2) shall remain stayed."

2. After a counter affidavit was filed in the matter, the writ petition was heard again and following orders were passed on 20.2.2019:-

"Although it is alleged that order impugned is without jurisdiction, inasmuch as, once the order of regularization was passed and had attained finality, the authority who could look into the matter was the Director, under Section 16-E(10) of the U.P. Intermediate Education Act, 1921. Such a plea, however, does not appear to have been specifically taken.

Learned counsel, therefore, comes up with the prayer to adjourn the matter for today so as to enable him to file an appropriate application. It shall, however, be open for the learned Standing Counsel also to obtain instructions in that regard.

List in the next cause list."

3. The matter was further adjourned to 5.3.2019 to enable the learned Standing Counsel for the respondent to obtain instructions. It is in this back ground that the matter has been placed before the Court. With the consent of learned counsel for the parties the writ petition is taken up for final adjudication at the admission stage itself.

4. Petitioner was initially appointed as Assistant Teacher on L.T. Grade on adhoc basis on 30.11.1990 after the vacancy was advertised in news paper 'Amrit Prabhat' on 26.9.1990 and a further advertisement was issued on 2.11.1990. It appears that salary was not being paid to petitioner as such he approached this Court by filing Writ Petition No. 30967 of 1991 in which following interim order was passed on 13.3.1992:-

"The petitioner is working as adhoc Lecturer in L.T. Grade. Till a regular selection is made by the Commission to the said post, the petitioner shall continue to work and he will be paid his salary from the date he has been appointed as adhoc basis. The District Inspector of Schools shall comply with the order of this Court within one week.

List this petition in July, 1992."

5. Pursuant to the aforesaid order passed, the District Inspector of Schools passed a consequential order on 18.4.1992 for release of salary to the petitioner. The writ petition was ultimately disposed of on 8.4.2003 with a direction upon the authority concerned to consider petitioner's claim for regularisation. The Regional Level Committee accordingly examined the claim of petitioner for regularisation and proceeded to pass a specific order on 9.10.2006, regularising the services of the petitioner. This order had attained finality inasmuch no challenge was laid to it by any one.

6. It appears that the claim of salary of one Smt. Uma Gupta was not accepted by the authorities and the matter was ultimately brought before this Court in Special Appeal No. 463 of 2010. The appeal was disposed of on 7.4.2011 vide following orders:-

"Against this background, we dispose of the appeal by saying that the matter will be placed before the appropriate Regularisation Committee constituted under Section 33-B and 33-C of the U.P. Secondary Education Services Selection Board Act, 1982 for the purpose of coming an appropriate conclusion as early as possible preferably within one month from the date of communication of this order. For the purpose of effective adjudication all the parties concerned will be given opportunity of hearing and the Committee will pass appropriate reasoned order upon hearing all the parties. Copy of the paper book of this special appeal can also be treated as part and parcel of the representation, if any, to be filed before the authority concerned as an additional papers. It is obvious that at the time of consideration the cause of the appellant-petitioner question of her initial appointment will also be adjudged.

No order is passed as to costs."

7. It is pursuant to the aforesaid directions issued in Special Appeal that the order impugned has been passed by the Regional Level Committee. The order impugned records that there existed only 14 posts of L.T. Grade teacher in the institution and that salary to 14 L.T. Grade teachers was already being released when the petitioner was appointed on 30.11.1990, and therefore, petitioner's engagement itself was in excess of sanctioned strength. Having said so, the Regional Level Committee proceeded to cancel the petitioner's regularisation order, already passed earlier on the ground that the facts had not been correctly examined and that the petitioner could not have been regularised in absence of vacant post.

8. The order impugned is assailed essentially on two grounds. It is contended firstly, on facts, that Assistant Teachers in excess of 14 were actually receiving salary prior to May, 1975 and even later also. Submission is that this crucial aspect of the matter has not been taken note of by the authority concerned. It is also stated that once petitioner's regularisation was not assailed, the Regional Level Committee suo-moto could not have revoked the order of regularisation particularly when there was no direction by the writ Court, in that regard. It is urged that the observation made in the Special Appeal No. 463 of 2010 was not available for being pressed in order to pass the order impugned as the present petitioner was not even a party there. Secondly, it is argued that the order impugned is also without jurisdiction inasmuch as the regularisaiton order dated 9.8.2006 once had attained finality, the Regional Level Committee could not suo-moto revoke the earlier order inasmuch as the only authority competent in that regard would be the Director under Section 16 E(10) of the U.P. Intermediate Education Act,1921 and the Regional Level Committee had no jurisdiction to revoke/ cancel the order of regularisation after such long lapse of time.

9. A Counter Affidavit has been filed on behalf of the authorities, wherein, the facts asserted in the order impugned have been reiterated. The order passed in the case of Smt. Uma Gupta has also been referred to, in the counter affidavit. According to the respondents, the petitioner continued to receive salary under the orders of this Court and that his engagement was in excess of sanctioned strength.

10. I have learned counsel for the parties and have perused the records available on record.

11. It is admitted to the respondent that petitioner was appointed on 30.11.1990. His appointment was not granted financial approval on account of which petitioner earlier approached this Court by filing Writ Petition No. 30967 of 1991. Pursuant to the directions issued therein, an order of approval was passed by the Inspector on 18.4.1992 and ultimately the writ petition was disposed of with a direction upon the authorities to consider petitioner's claim for regularisation. It would be appropriate to reproduce the operative portion of the order dated 8.4.2003, passed in petitioner's earlier writ petition:-

"I have heard learned counsel for the parties and have perused the documents and analysed the section 33 (b) of the Act. The petitioner by virtue of being appointed as Assistant Teacher and for continuously being paid salary and in view of Section 33 (b) ( with effect from 7.1.1993) and selection committee comprising regional director and as amended subsequently the Regional Selection Committee headed by Joint Director alongwith other members may consider the genuineness of the claim of the petitioner on the representation presented by the petitioner and shall pass appropriate order in accordance with law within four weeks from today before such selection committee and the selection committee shall hear the petitioner and by a reasoned and speaking order within three months from the date of presentation of the certified copy of this order. In the meantime the interim order dated13.3.1992 shall be made effected and the petitioner shall be paid salary accordingly.

In view of the above observation, this writ petition is disposed of."

12. A perusal of the aforesaid direction would clearly go to show that all aspects including genuineness of petitioner's claim was left open to be considered by the selection committee, in accordance with law. There was no direction by this Court to regularise petitioner's services and the direction was only for consideration of his claim, in accordance with law. Undisputedly, petitioner's claim was considered and his services were regularised on 9.8.2006. This order has attained finality and was not put to challenge. It is in this background that the illegality of the order of Regional Level Committee would have to be examined.

13. The order of the Regional Level Committee is challenged on the factual aspects by contending that persons in excess of 14 L.T. Grade teachers were receiving salary. Petitioner has brought on record the payment of salary bills for the month of May and June, 1974 to contend that the salary was being released to about 18 teachers. Paragraph 16(b) and (f) of the writ petition in that regard has not been specifically denied. The salary bills annexed alongwith the writ petition have also not been effectively disputed. In that view of the matter the authorities cannot be said to have correctly determined the number of vacancy in L.T. Grade sanctioned in the institution inasmuch as if salary was being paid to more than 14 teachers and there was no contrary order determining the sanctioned strength of teachers in the institution, it was not open for the authorities to hold that only 14 posts of L.T. Grade teachers existed in the institution. Petitioner has also brought on record the strength of teachers determined by the authority vide Annexure -8 to the writ petition, as per which also posts in excess of 14 exists in L.T. Grade in the institution. This document is also not disputed in the counter affidavit. This Court, therefore, finds substance in the petitioner's contention that the determination of sanctioned posts of Assistant Teachers in L.T. Grade by the Regional Level Committee, vide the order impugned, is not sustainable inasmuch relevant materials in the form of salary bill and post creation order etc. have not been taken note of. Even otherwise, specific order of post creation was not shown to be available and the authorities have proceeded merely on the basis of payment of salary register which also supports the claim of petitioner that the post in excess of 14 teachers existed in the institution concerned.

14. The writ petition is also liable to succeed on the other legal submissions urged on behalf of petitioner. Admittedly, the order of regularisation dated 9.8.2006 had attained finality and was not put to challenge by any one. The Regional Level Committee while considering the claim of Smt. Uma Gupta was not justified in revoking the regularisation order of the petitioner inasmuch as the Division Bench, while passing the order dated 7.4.2011 had not granted any such liberty to the Regional Level Committee to revisit the regularisation order already passed in case of other teachers including the petitioner. Petitioner was otherwise not a party in the writ petition of Smt. Uma Gupta or in the Special Appeal filed by her. The appointment made in the recognised intermediate institution, having attained finality could otherwise be reopened by the Director alone while exercising his jurisdiction under Section 16-E (10) of the U.P. Intermediate Education Act,1921. Such a power was not available to the Regional Level Committee. In that view of the matter, the writ petition succeeds and is allowed. Order of the Regional Level Committee dated 5.3.2012 stands quashed. Liberty stands reserved to the competent authority to proceed further, in accordance with law after affording an opportunity of hearing to the parties concerned within a period of four months from the date of presentation of certified copy of this order.

Order Date :- 27.3.2019

n.u.