Ved Mani Singh vs Joint Director Of Education And 4 ...
2019 Latest Caselaw 4346 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 22
 

 
Case :- WRIT - A No. - 37278 of 2015
 

 
Petitioner :- Ved Mani Singh
 
Respondent :- Joint Director Of Education And 4 Others
 
Counsel for Petitioner :- Adarsh Singh,Indra Raj Singh
 
Counsel for Respondent :- C.S.C.,Dilendra Pratap Singh,Gopal Misra
 
Hon'ble Vivek Varma, J.

1. Heard Sri Indra Raj Singh, learned counsel for the petitioner; Sri Gopal Misra, learned counsel for the respondent no. 5; and learned Standing Counsel for the State-respondents.

2. By means of the present writ petition, the petitioner has sought a writ of certiorari quashing the order dated 08.06.2015 passed by the Joint Director of Education, Basti Region, Basti, whereby the initial appointment of the petitioner on the post of Assistant Teacher and, thereafter, promotion on the post of Lecturer Economics was found to be illegal and a direction was issued to the District Inspector of Schools/Authorized Controller of the Institution to prepare a resolution for promotion of respondent no.5, Indra Mani Singh on the post of Lecturer Economics.

3. The petitioner has challenged the order dated 08.06.2015 by contending that in the proceedings of determination of promotion of respondent no.5, the initial appointment of the petitioner could not have been challenged, that too belatedly. The promotion of the petitioner had been made under Rule 14 of the U.P. Secondary Services Selection Board Rules, 1998 (hereinafter referred to as 'the Rules, 1998') by the three members statutory selection committee constituted under Section 12 of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'the Act, 1982') on 11.08.2011. The impugned order dated 08.06.2015 passed by the Joint Director of Education Basti, Region Basti is without jurisdiction and illegal. It is further submitted that the respondent no.5, Indramani Singh never challenged the promotion of the petitioner dated 11.08.2011 on the post of Lecturer Economics before this Court. The Court vide order dated 23.09.2014 passed in Writ-A No. 51546 of 2014 (Indramani Singh Vs. State of U.P. & 4 others) only afforded an opportunity to the respondent no.5 to make a representation for considering his claim for promotion on the post of Lecturer Economics. The order does not confer a right to challenge the promotion or the appointment of the petitioner nor does the order condone the delay on part of the respondent no. 5. Further, there being only a single post in the subject of Lecturer Economics in the cadre, which was already occupied by the petitioner on account of his promotion on 11.08.2011, as such there being no vacancy, the claim of the respondent no.5 was liable to be rejected by the Joint Director of Education. The petitioner has served in the Intermediate College known as Rastriya Krishak, Inter College, Raghuraj Nagar Sudipur, District Basti (hereinafter referred to as the 'Institution') from 03.07.1991 initially on the post of Assistant Teacher and subsequently from 11.08.2011 on the promoted post of Lecturer Economics and during his entire service, the work and conduct of the petitioner has always been satisfactory and was never awarded any adverse entry.

4. Learned counsel for the petitioner further submitted that while securing appointment, the petitioner has not committed any fraud or manipulation or suppression of material facts. He has relied upon the judgment rendered by the Hon'ble Apex Court in the case of Mohd. Zamil Ahmad Vs. State of Bihar1. He has also relied upon the judgements rendered by this Court in the cases of Prem Prakash Vs. State of U.P. and others2; Mohan Lal Sharma Vs. The District Inspector of Schools and another3; Smt. Rani Srivastava Vs. State of U.P. and others (DB)4; Ram Kumar Gupta Vs. Committee of Management5; and Kalindi Pandey Vs. State of U.P.6.

5. On the other hand, learned Standing Counsel submitted that the initial appointment of the petitioner was bad and as such he could not have continued in service, therefore, the promotion granted to him vide order dated 11.08.2011 was illegal. He further contended that the appointment letter of the petitioner dated 03.07.1991 reveals that he had been appointed under the the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred as 'the Rules, 1974) and as such it was a compassionate appointment. The said appointment has been procured on the basis of affidavit given by Smt. Urmila Singh, who is wife of Sri Chandra Dhari Singh (brother of the petitioner). Under the provisions contained in the Rules, 1974, the petitioner cannot be appointed, as a brother, does not come under the category of 'dependent' of a deceased employee. It has, thus, been sought to be contended that the appointment of the petitioner was void ab initio and the same was based on fraud and misrepresentation.

6. Sri Gopal Misra, learned counsel for the respondent no. 5 has submitted that the order dated 23.09.2014 was passed after hearing all the concerned parties in compliance of the order dated 23.09.2014 passed in Writ-A No. 51546 of 2014 (Indra Mani Singh Vs. State of U.P. and 4 others) and as such the entire exercise cannot be faulted upon. He further stated that the appointment of the petitioner was de-hors the rules and the same has been obtained by fraud and misrepresentation and as such the impugned order has rightly been passed.

7. I have considered the rival submissions made by learned counsel for the parties and perused the record. The Institution is duly recognized under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act, 1921') and payment to the staff is made under the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 (hereinafter referred to as 'the Act, 1971'). The service conditions of the teachers and other employees are governed through the Act, 1921 as well as the Act, 1982 and the Rules framed there-under.

8. The petitioner was appointed on the post of Assistant Teacher on 03.07.1991 in the aforesaid Institution. The appointment of the petitioner was approved by the District Inspector of Schools, Basti, vide order dated 03.07.1991. The petitioner was regularized on the post of Assistant Teacher with effect from 06.08.1993.

9. The petitioner claims that a permanent post of Lecturer Economics fell vacant on 01.07.2009 due to retirement of one Sri Guru Bux Singh. It is stated that the said substantive vacancy was under the 50% promotion quota as provided under Rule 10 (b) of the Rules, 1998. Three members Selection Committee was constituted under Section 12 of the Act, 1982. The said statutory selection committee on 11.08.2011 considered the candidature of three Assistant Teachers, namely, Sri Ram Raj Pal, Sri Ved Mani Singh (petitioner) and Sri Indra Mani Singh (respondent no.5) under Rule 14 of the Rules, 1998. The Selection Committee found that Ram Raj Pal did not have the requisite educational qualification on the date of occurrence of vacancy and the respondent no.5, Indra Mani Singh was found junior to the petitioner and, therefore, the Selection Committee selected the petitioner for promotion on the post of Lecturer Economics vide its proceeding dated 11.08.2011 and, thereafter, order for promoting the petitioner was issued by the District Inspector of Schools, Basti on 02.09.2011. The petitioner joined on the promotional post of Lecturer Economics on 07.09.2011 and has been functioning on the said post thereafter.

10. The promotional order dated 11.08.2011 was challenged by one Ram Raj Pal by filing Civil Misc. Writ Petition No. 44196 of 2012 (Ram Raj Pal Vs. State of U.P. & others) before this Court. The Hon'ble Court vide order dated 04.09.2012 dismissed the said writ petition on the ground that the petitioner therein (Ram Raj Pal) was ineligible and the present petitioner Ved Mani Singh was eligible and qualified also.

11. The order dated 04.09.2012 attained finality as it was not subjected to challenge.

12. It is now claimed that after more than three years of passing of the order of promotion dated 11.08.2011, the respondent no.5, Indra Mani Singh filed a writ petition being Writ-A No. 51546 of 2014 (Indra Mani Singh Vs. State of U.P. & 4 others) with a grievance that he is entitled for promotion from the post of Assistant Teacher to the post of Lecturer Economics, but the same has not been considered so far. This Court on 23.09.2014 disposed off the said writ petition, extending the liberty to file representation for his promotion before the Joint Director of Education, Basti Region, Basti, who was directed to pass appropriate orders after hearing the parties concerned. The respondent no.5 approached the District Inspector of Schools, Basti, in compliance of the Hon'ble Court's order dated 23.09.2014 passed in Writ-A No. 51546 of 2014 and prayed for his promotion on the post of Lecturer Economics. However, his claim was rejected by the District Inspector of Schools, Basti vide order dated 02.12.2014. The said order was not challenged before any competent forum and has become final against him. Meanwhile the respondent no.5 had simultaneously approached the Joint Director of Education, Basti Region, Basti, who passed the order dated 08.06.2015, which is under challenge in the present writ petition.

13. In the case of Mohd. Zamil Ahmad (Supra) while examining the similar issue where the brother of the deceased was given compassionate appointment in the State services and after 15 years of satisfactory duty his services were terminated. In paragraph 22 and 23, the Hon'ble Apex Court held as follows:

"22. In these circumstances, we are of the view that there was no justification on the part of the State to woke up after the lapse of 15 years and terminate the services of the appellant on such ground. In any case, we are of the view that whether it was a conscious decision of the State to give appointment to the appellant as we have held above or a case of mistake on the part of the State in giving appointment to the appellant which now as per the State was contrary to the policy as held by the learned Single Judge, the State by their own conduct having condoned their lapse due to passage of time of 15 years, it was too late on the part of the State to have raised such ground for cancelling the appellant's appointment and terminating his services. It was more so because the appellant was not responsible for making any false declaration and nor he suppressed any material fact for securing the appointment. The State was, therefore, not entitled to take advantage of their own mistake if they felt it to be so. The position would have been different if the appellant had committed some kind of fraud or manipulation or suppression of material fact for securing the appointment. As mentioned above such was not the case of the State.

23. It is for this reason, we are of the view that action on the part of welfare State in terminating the appellant's service on such ground cannot be countenanced. We, therefore, disapprove the action taken by the State."

14. This Court in the case of Prem Prakash (supra) laid down the law that while examining the dispute relating to seniority the validity of the appointment cannot be looked into. It was observed as follows:

"8. It is evident from the record that respondent no. 5 was appointed in the institution concerned in 1979 and at no point of time he ever challenged the appointment of petitioner or anybody else before the competent authority. The representation made by respondent no. 5 for the first time after occurrence of vacancy on 15.08.2002 also basically relates to question of seniority and not that of appointment of petitioner. In view of the exposition of law laid down in the above cases in a dispute relating to seniority the validity of appointment cannot be looked into and hence it was not open to respondent no. 5 to challenge the validity of appointment of petitioner in an incidental and ancillary question which is basically relates to seniority. Moreover, nothing has been placed on record to show as to how and why the respondent no. 5 could not challenge the appointment of petitioner for more than two decades and, therefore, the respondent no. 5 could not have been allowed to raise this issue after such a long time. It is however not disputed that the institution in question was brought to grant-in-aid in 1974 as also admitted by respondent no. 5 in para 18 of his counter affidavit and, therefore, salary from the State Exchequer was allowed to petitioner only w.e.f. 01.07.1974 and earlier thereto a meager sum of Rs. 25/- per month was paid to petitioner which became Rs. 165/- per month on application of regular pay scale."

15. This Court in the case of Mohan Lal Sharma (supra) has laid down the law that there is no provision in the Intermediate Education Act or in the Regulations framed thereunder conferring power on the District Inspector of Schools to review an order according approval under Section 16-E of the Act, 1921. The District Inspector of Schools, like any other statutory authority, has, however power to recall or revoke its order if it is obtained by mistake, misrepresentation of fraud. Even assuming that the order of approval was passed under some mistake, the inspector had no jurisdiction to revoke the same unless some opportunity of explanation of hearing was given to the petitioner because once an approval is granted to the appointment of a teacher and if orders of his appointment are issued, vested rights are created in his favour.

16. This Court in the case of Smt. Rani Srivastava (supra) while examining the issue with regard to termination of the head mistress of a Junior High School. In paragraph 3, this Court has observed as follows:

"3. PRINCIPAL infirmity in appointment of petitioner, that could be pointed out, was that it was made without issuing any advertisement and recommendation by selection committee. May be but could the management which appointed petitioner in 1984 and the Basic Shiksha Adhikari who did not raise any objection to payment of salary for five years raise this objection in 1989. The appointing authority under rules is the Committee of Management. And the approving authority is the Basic Shiksha Adhikari, who under U.P. Act no. 6 of 1979 is also to supervise the payment of salary and is empowered to inspect and check. For five years no objection was raised by him. And then suddenly when one of the members desired that a male principal should be appointed, he also raised an objection. The petitioner had raised objection as far back as 1985 against her being treated and temporary employee. No action was taken on it. Nor any decision was given. For procedural irregularity the petitioner should not be made to suffer. Normally it is to be presumed that Management must have sent papers for appointment of petitioner to Basic Shiksha Adhikari who must have granted approval unless it is rebutted either by placing any communication by management or from record of Basic Shiksha Adhikari to show that things did not proceed as they are provided in the Act. In absence of any material there is no reason to doubt that Committee of Management would have appointed without intimating Basic Shiksha Adhikari and would have even issued letter appointing petitioner permanently and Basic Shiksha Adhikari would not have raised any objection in respect of payment of salary etc. from 1984 to 1989. Change of Secretary or Basic Shiksha Adhikari should not be permitted to create any difference otherwise it shall result in creating arbitrariness and expose teachers of being thrown out of employment on one or the other pretext and shall never have security which is necessary for efficient discharge of duty. Equity stands in her favour and prevents both the appointing and approving authority from taking recourse to their own mistakes, for causing prejudice to petitioner. Estoppel, the principle of equity, is the shield for such unjust and unfair actions."

17. The Hon'ble Apex Court in the case of Ram Kumar Gupta (supra) while examining the issue of termination of a teacher without obtaining approval from the Board, has held in paragraphs 3 and 4 as follows:-

"3. Section 21 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (herein after referred to as the Act) has laid down that the management shall not except with the prior approval of the Board, dismiss any teacher or remove him from service. The said Section places embargo against the removal of teacher by the management without prior approval from the Board. Section 21 of the At is reproduced below:

"21. Restriction on dismissal etc. of teachers: The Management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his inherent for any period (whether temporarily or) and any such thing done without such prior approval shall be void."

4. For the reasons given above the writ petition is allowed with costs. The resolution of the Committee of Management dated 04.12.1994 and the order dated 05.11.1994 passed by the Manager of the College removing the petitioner from service, are quashed. The petitioner will be reinstated in service forthwith with full back salary and other allowances permissible under law from the date of termination of service to the date of reinstatement. Petition allowed."

18. The Hon'ble Apex Court in the case of Kalindi Pandey Vs. State of U.P. (Supra) while examining the issue of termination of services after more than 13 years, laid down the law as follows:

"10. The decisions which have been relied upon learned counsel for the respondents deal with such cases where the candidates did not possess the basic minimum qualification and their appointments were cancelled or they were dismissed from service soon after the appointments were made. In Mohd. Sartaj (supra), the select list was prepared on 19th June, 1985 and the appointments were cancelled on 9th August, 1985 as the candidates did not possess the Basic Teachers Certificate since Urdu Training Certificate from the Jamia Urdu Aligarh was not considered as a Basic Teachers Certificate.

In Dr. M.S. Patil (supra), the candidate was appointed on 4th February, 1993 and continued to work for 17 years under the interim order passed by the High Court and it is in this context that the Supreme Court observed that the plea that he should be allowed to continue cannot be accepted.

In Shesh Mani Shukla (supra), the District Inspector of Schools disapproved the selection of the appellant made by the Management on 10th September, 1987 by the order dated 4th April, 1988 but the appellant was permitted to work. It is for this reason that the Supreme Court held that the appointment of the appellant being in contravention of the statutory provisions was void and merely because that he had worked for some time will not a ground to grant the relief claimed by the appellant for setting aside the order passed by the District Inspector of Schools to disapprove his selection.

In Ajay Singh (supra), the appointment of the respondent on the post of X-Ray Technician was challenged by the petitioner. It was noticed that after the issuance of the advertisement, the terms of the advertisement had been changed and the person who did not possess the qualification was considered to be eligible on the basis of the changed qualification. It is in this context that the Court held that the qualification once advertised cannot be changed unilaterally by the Appointing Authority.

In Dr. Chandra Kumari (supra), the District Basic Education Officer granted approval to the selection of the respondent on 9th July, 2004 and this was questioned by the petitioner in the writ petition filed in 2004 on the ground that he did not possess the requisite certificate required under Rule 4 of the 1978 Rules as he possessed the B.Ed. qualification and even the application was incomplete as the said certificate was not filed. It was for this reason that the appointment of respondent was set aside.

In the instant case, it is seen that the objection was raised by the District Basic Education Officer after a period of 14 years. Thus, the aforesaid decisions, relied upon by learned counsel for the respondents, will not help the respondents.

Thus, for all the reason stated above, it is not possible to sustain the direction issued by the District Basic Education Officer on 15th July, 2010 to the Committee of Management of the Institution to terminate the services of the petitioner for the reason that the petitioner did not possess the required teachers training course certificate and nor is it possible to sustain the decision taken by the Committee of Management of the Institution to terminate the services of the petitioner merely because of the aforesaid direction issued by the District Basic Education Officer."

19. In the present case, there is another aspect of the matter which also needs to be examined is that the three members selection committee constituted under Section 12 of the Act, 1982 had considered the candidature of the petitioner, respondent no.5 as well as Sri Ram Raj Pal and after examination of relevant documents and record, only the petitioner was found eligible for promotion on the post of Lecturer Economics. The claim of the respondent no.5 was specifically rejected and duly communicated. However, the respondent no.5 did not challenge the same. The validity of the order dated 11.08.2011, wherein the Regional Level Committee proceeded to accept the claim of the petitioner, was challenged before this Court by one Sri Ram Raj Pal by filing a Civil Misc. Writ Petition No. 44196 of 2012 (Ram Raj Pal Vs. State of U.P. and others), the Hon'ble Court vide judgement dated 04.09.2012 proceeded to hold the petitioner to be eligible and qualified than the other candidates. The order of this Court dated 04.09.2012 attained finality.

20. Thus, in my opinion, once the appointment and promotion of the petitioner became final, a vested right was created in his favour. A teacher of the same institution having acquiesced to the appointment and promotion cannot subsequently be permitted to raise any dispute.

21. In Dr. Asha Saxena v. Smt. S.K. Chaudhary and others7, a Full Bench of this Court has held as under:

"16. .....In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16-E (10) of the Act and we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointment had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time."

22. Further, this Court in Smt. Manju Keshi Dixit Vs. State of U.P. and others8 reiterated the aforesaid view making following observations:

"13. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities."

23. In the instant case, it may be noticed that the promotion of the petitioner was made by the Committee, which also considered the candidature of respondent no.5, constituted under Section 12 of the Act, 1982 and the challenge made against the same by one Ram Raj Pal was dismissed by this Hon'ble Court with categorical finding that only the petitioner is eligible and qualified and as such the Joint Director of Education, Basti Region, Basti by the impugned order dated 08.06.2015 cannot take a contrary view and re-open the proceeding, which otherwise attained finality, in the garb of deciding the representation of the respondent no.5.

24. Further, the validity of initial appointment of the petitioner and thereafter his promotion was not the issue to be adjudicated by the Joint Director of Education, Basti Region, Basti.

25. It is also to be noticed that the Joint Director of Education does not have the power to sit in appeal upon the order, whereby the petitioner has been regularized and, thereafter, promoted on the post of Lecturer Economics.

26. No collateral challenge to the original appointment can be entertained in a seniority/promotional dispute.

27. The original appointment was made by the competent statutory authority. There is no power of review vested under the statute. There is no finding of fraud or manipulation by any of the authorities below.

28. The appointment made on compassionate ground is a permanent appointment. Such appointment cannot be canceled without recourse to procedure provided by law. Nothing has been pointed out in the course of arguments nor was attention called to any material in the record to establish the fact that the procedure known to law was followed before terminating the services of the petitioner. The action of the authority is arbitrary and illegal.

29. In view of the discussion made herein-above, this Court is of the opinion that the impugned order dated 08.06.2015 is liable to be set aside.

30. The impugned order dated 08.06.2015 passed by the Joint Director of Education, Basti Region, Basti is hereby set aside. The writ petition succeeds and is allowed.

31. There is no order as to costs.

Order Date :- 10.05.2019

Lbm/-