Sanjay Mani Tripathi vs State Of U.P. Thru Its Secretary ...
2019 Latest Caselaw 344 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on  03.01.2019
 
Delivered on 01.03.2019
 
Court No. - 34
 

 
Case :- WRIT - A No. - 9974 of 2008
 
Petitioner :- Sanjay Mani Tripathi
 
Respondent :- State of U.P. and others 
 
Counsel for Petitioner :- D.N. Mishra, M.S. Khan, R.C. Dwivedi
 
Counsel for Respondent :- C.S.C., J.H. Khan, P.R.Ganguli, Ramanuj Pandey
 
Hon'ble Sudhir Agarwal, J.

1. Heard Sri R.C. Dwivedi, Advocate, for petitioner; learned Standing Counsel, Sri Gulrez Khan, Advocate, holding brief of Sri J.H. Khan, Advocate, and Sri Ramanuj Pandey, Advocate, for respondents.

2. This writ petition has been filed by sole petitioner, Sanjay Mani Tripathi, praying for a writ of certiorari for quashing order dated 17.12.2007 (Annexure-10 to the writ petition) passed by District Inspector of Schools, Deoria (hereinafter referred to as "DIOS"), whereby it has rejected petitioner's representation, declared appointment of Sri Satish Chandra Pandey, respondent-6 as valid and has accordingly granted financial sanction/approval to his appointment.

3. Facts in brief, giving rise to present dispute, are as under.

4. Satasi Inter College, Rudrapur, District Deoria (hereinafter referred to as "College") is a secondary educational institution governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). With respect to payment of salary of teaching and non teaching staff of the College, it is governed by the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act, 1971") and for the purposes of recruitment of Teachers, provisions of U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as "Act, 1982") are applicable.

5. One Ramanand Tripathi, Assistant Teacher (L.T. Grade), after attaining age of superannuation, retired on 30.06.1990. The substantive vacancy was requisitioned to U.P. Secondary Education Services Selection Board (hereinafter referred to as "UPSESSB") on 11.02.1991 and thereafter DIOS vide letter dated 26.02.1991 granted financial approval to ad-hoc appointment of Shri Srinarain Pandey as Assistant Teacher (L.T. Grade). Shri Srinarain Pandey was promoted as Lecturer in English on ad-hoc basis on 29.02.1996 thereby causing a short term vacancy on the post of Assistant Teacher (L.T. Grade) (English).

6. An advertisement was published by Manager, Committee of Management of the College in daily newspaper "Jagat Asha" on 28.08.1998 advertising two short term vacancies of Assistant Teacher in College and inviting applications by 12.09.1998. Interview was scheduled on 20.09.1998. Advertisement was also published in daily newspaper "Deoria Express" dated 28.08.1998. Sri Sachidanand Pandey was Head Clerk of College and respondent-6 is his son. They acted in collusion with the Management and documents proposing appointment of respondent-6 were forwarded to DIOS recommending his appointment as Assistant Teacher (L.T. Grade). Management also issued appointment order dated 04.10.1998 to respondent-6 but when payment of salary was not made, Writ Petition No. 20010 of 2001 was filed by respondent-6 which was disposed of vide judgment dated 21.05.2001 directing DIOS to decide representation of respondent-6 with regard to salary. DIOS passed order dated 23.04.2003 holding that no information was received in his office with regard to vacancy, as alleged to have been given on 03.05.1998, and letter dated 03.05.1998 is forged and fictitious; the advertisement dated 28.08.1998 was not published in two daily newspapers of wide circulation and documents with regard to appointment also are not found in the Office; appointment of respondent-6 was not in accordance with U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as "Second Order"), hence cannot be accepted.

7. Respondent-6 then filed Writ Petition No. 40318 of 2003 which was disposed of vide judgment dated 02.08.2006 and Court remanded the matter to DIOS to decide afresh after re-examination.

8. Thereafter DIOS passed another order dated 02.03.2007 and relying on this Court's judgment dated 02.08.2006, observed that since earlier order of DIOS has been set aside, therefore appointment of respondent-6 is valid and liable to be approved.

9. This order dated 02.03.2007 passed by DIOS was challenged by petitioner in Writ Petition No. 23848 of 2007. The writ petition was allowed vide judgment dated 21.05.2007 and Court held that question about compliance of requirement of wide publicity of vacancies as held in Radha Raizada Vs. Committee of Management, V.D.G.I. Inter College and others 1994 (3) UPLBEC 1551 has not been considered by DIOS, hence his order was liable to be set aside. Matter was remanded again.

10. Thereafter impugned order has been passed by DIOS reiterating his earlier view that appointment of respondent-6 is valid and is approved from the date of his joining.

11. Three counter affidavits have been filed in this writ petition. Respondents- 1 and 2 have filed a counter affidavit sworn by Sri V.P. Singh, Associate District Inspector of Schools, Deoria stating that due to promotion of one Shri Srinarain Pandey, Assistant Teacher (L.T.Grade) in Lecturer Grade in 1991 a short term vacancy occurred. Management advertised the vacancy and thereafter appointed respondent-6 on 20.09.1998. It has justified its order for the reasons stated therein.

12. Respondent-4 has filed its own counter affidavit stating that a post of Lecturer (English) fell vacant due to death of Sri Shambhu Sharan Chaturvedi, working on the said post. The vacancy was to be filled in by promotion. Hence a requisition was sent by Management to UPSESSB through DIOS, received in his Office on 25.10.1996. DIOS forwarded it to UPSESSB vide letter dated 03.06.1997. Since Shri Srinarain Pandey was working as Assistant Teacher (L.T. Grade) in English since 27.02.1991 he was found eligible for ad-hoc promotion to the post of Lecturer (English) and this was approved by DIOS vide letter dated 05.06.1997. After ad hoc promotion of Shri Srinarain Pandey as Lecturer (English), a short term vacancy on the post of Assistant Teacher (L.T. Grade) occurred and it was intimated to DIOS by Management vide letter dated 03.05.1998. Advertisement was published on 28.08.1998 in daily newspaper "Jagat Asha" and "Deoria Express" which are registered under Registrar of Newspapers, India. On 20.09.1998 a Selection Committee interviewed candidates and on the basis of quality point marks, respondent-6 was recommended for appointment as Assistant Teacher (L.T. Grade), on ad-hoc basis. The documents were also forwarded to DIOS by Management's letter dated 25.09.1998. On 04.10.1998 a letter of appointment was issued by Management to respondent-6 appointing him as Assistant Teacher (L.T. Grade) on ad-hoc basis. Since no payment of salary was made to respondent-6, hence Management sent reminders. However, as no financial approval was given by DIOS, respondent-6 filed Writ Petition No. 20010 of 2001 which was disposed of vide order dated 21.05.2001 directing DIOS to take a final decision in the matter of approval to appointment of respondent-6. DIOS vide letter dated 23.04.2003 refused to grant financial approval to appointment of respondent-6. Against this order, respondent-6 filed Writ Petition No. 40318 of 2003 which was allowed and order of DIOS was set aside. Thereafter DIOS passed fresh order granting approval. Respondent-4 claimed that appointment of respondent-6 is valid and warrants no interference.

13. Respondent-5, i.e., Principal of College has also filed a separate counter affidavit taking similar stand as has been taken by other respondents and has supported appointment of respondent-6.

14. Learned counsel for petitioner contended that ad-hoc appointment of respondent-6 has not been made after following procedure laid down in Second Order and the law laid down by Full Bench in Radha Raizada Vs. Committee of Management (supra) and, therefore, it is liable to be set aside.

15. It is contended that vacancy was not advertised in two daily newspapers of wide circulation, therefore, ad-hoc appointment of respondent-6 is not valid and vitiated in view of law laid down in Radha Raizada Vs. Committee of Management (supra).

16. Full Bench in Radha Raizada Vs. Committee of Management (supra) held that an advertisement of short term vacancy on Notice Board as provided in para-2 of Second Order in fact is no notice to prospective eligible candidates as prospective candidates are not expected to visit each institution to see Notice Board to find out whether any short term vacancy is advertised or not. Since payment of salary to Teachers appointed against short term vacancies is liability of State Government, compliance and conformity with Article 16(1) of Constitution is necessary. It is thus held that procedure provided for notifying short term vacancies should be same as contained in para-5 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order") (hereinafter referred to as "First Order"). The kind of newspaper in which vacancy ought to be notified is stated in para-42 of judgment as under:

" The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two Newspapers 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."

17. There is nothing on record to show that the two newspapers in which the vacancy in question was advertised do not have adequate circulation in the State of U.P. It is not the case of petitioner that he could not apply for the vacancy in question for want of any notice or information or due to non publication of vacancy in two newspapers of wide circulation in State of U.P. On the contrary, it is admitted by petitioner in para-6 that he also submitted application pursuant to advertisement dated 28.08.1998. That being so and also considering the fact that there is no material on record to show that two newspapers in question are such which do not have adequate circulation in State of U.P., I find it difficult to hold that law laid down in Radha Raizada Vs. Committee of Management (supra) has not been complied with.

18. No other point has been argued.

19. The writ petition lacks merits. Dismissed.

Dt. 01.03.2019

PS