Ashok Singh And Others vs District Inspector Of School
2023 Latest Caselaw 23148 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC-LKO:56557
 
Reserved On: 24.03.2023                                                                Delivered On: 24.08.2023
 
Court No. - 5
 

 
Case :- WRIT - A No. - 8466 of 1989
 

 
Petitioner :- Ashok Singh And Others
 
Respondent :- District Inspector Of School
 
Counsel for Petitioner :- H.S.Sahai,Girish Chandra Verma,H.G.S.Parihar,M.S. Rathore,Priti Saxena,U.S. Sahai
 
Counsel for Respondent :- C.S.C.,L.P. Shukla,O.P.M. Tripathi
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri G.C. Verma, learned counsel for the petitioners and learned Standing Counsel for the respondent No.1 and Sri Diwakar Singh Kaushik, learned counsel for respondent No.2.

2. The present writ petition has been preferred before this Court seeking a writ, order or direction in the nature of certiorari quashing the impugned orders dated 22.07.1988 (Annexure-9) as well as order dated 19.09.1989 (Annexure-11) with a further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to pay salary to the petitioners since the date of their joining. A further prayer has been made to treat the petitioners to be substantively appointed on the post of Assistant Teacher (L.T. Grade) with all consequential benefits.

3. Brief facts giving rise to the present writ petition are as under:

a.

The Rashtriya Intermediate College, Tinduwai Kala, District Faizabad (for short, 'College') is a recognized and added institution and the provisions of U.P. Intermediate Education Act, 1921 and the allied acts applies to the services of teachers and other employees of the College.

b.

One Sri Ram Dutt Singh, Lecturer in the College on attaining the age of superannuation retired from service on 30.06.1987 resulting a post of Lecturer fallen vacant in the College.

c.

Another Teacher (L.T. Grade), namely, Sri Shanker Tripathi also retired from service on attaining the age of superannuation on 30.06.1986 resulting a post of Assistant Teacher (L.T. Grade) fallen vacant in the College.

d.

Upon retirement of Sri Ram Dutt Singh, an Assistant Teacher (L.T. Grade), namely, Sri Arjun Prasad Pandey being eligible was promoted in Lecturer grade and as such, another post in Assistant Teacher (L.T. Grade) fallen vacant in the College.

e.

Accordingly, two vacancies occurred in L.T. Grade in the College and ad hoc appointments were to be made to fill up the vacancies.

f.

The Manager of the College wrote letter dated 24.07.1987 to the District Inspector of Schools (DIOS) apprising him the affairs with a request to fill up the vacancies or to issue directions for filling up the said posts.

g.

The DIOS neither appointed any reserve pool teacher nor took any steps for filling up those two vacancies in L.T. Grade and as such, looking to the interest of the students, the Committee of Management proceeded to make ad hoc appointments to fill up those vacancies.

h.

The Committee of Management notified two posts for filling up two vacancies of Assistant Teachers (L.T. Grade) vide notification dated 20.05.1988 and after considering the merit of the applicants, the Committee of Management found petitioner No.1, namely, Ashok Singh at first place and since one post was to be filled up by the candidate of Scheduled Caste Category, petitioner No.2, namely, Subhash Chand, who was sole candidate belonging to Scheduled Caste Category, was selected for the said post. A resolution in this regard was passed on 12.06.1988.

i.

Vide order dated 04.07.1988, the DIOS accorded approval to the ad hoc appointment of the petitioners.

j.

After grant of approval from the DIOS, the Committee of Management issued appointment letters to the petitioners on 07.08.1988 and in pursuance thereof, the petitioners joined their duties as Assistant Teachers (L.T. Grade) in the College on 08.07.1988 and submitted their joining. Since then, they are regularly functioning as Assistant Teachers (L.T. Grade).

k.

Vide letter dated 22.07.1988, the DIOS issued direction to the Accounts Officer and Manager of Committee of Management that since some complaints were received against the petitioners, therefore, payment of salary could not be made to them and the same requires investigation.

l.

Since passing of aforesaid impugned order, one year and two months have lapsed but no inquiry has been made in the matter.

m.

For redressal of their grievances in regard to payment of salary, the petitioners made a representation on 23.09.1989, which is lying pending consideration and no order whatsoever has been passed till date.

n.

Hence, the present writ petition has been preferred before this Court.

4. Submission of learned counsel for the petitioners is that while passing the impugned order, no opportunity of hearing was afforded to the petitioners. He submitted that once the approval was accorded to appointment of the petitioners and they are continuing on their respective posts, respondent No.1 could not stop payment of salary to them till conclusion of the inquiry.

5. He next submitted that Section 33-A(1-c) was inserted by U.P. Act No.25 of 1991 w.e.f. 06.04.1991, which provides that the teachers appointed either by promotion or by direct recruitment before 31.07.1988 on ad hoc basis against substantive vacancy in accordance with Section 18 possessing requisite qualification or is exempted from such qualification, shall, with effect from date of commencement of U.P. Secondary Education Service Commission Selection Board (Amendment) Act, 1991 shall be deemed to have been appointed in substantive capacity providing that such teachers should be continuously serving in the institution from the date of commencement of the Act. The petitioners were appointed prior to 31.07.1988 and were continuously working on the date of commencement of U.P. Act No.26 of 1991 w.e.f. 06.04.1991, therefore, they are deemed to have been substantively appointed on the post of Assistant Teachers (L.T. Grade).

6. He further submitted that there has been no power vested in the DIOS to revoke / review its own order, therefore, the impugned order dated 19.09.1989 is illegal and without jurisdiction. He submitted that while passing the said order, no opportunity of hearing was provided to the petitioner, therefore, the order is violative of principles of natural justice.

7. He lastly submitted that Regional Level Committee has considered the matter of appointment of petitioner No.1 on 15.12.2022 and regularized his service under Section 33-A(1-C) of Act of 1982 and in pursuance thereof, the Joint Director of Education issued an order on 17.12.2022 in regard to same. However, the matter of regularization of service of petitioner No.2 is pending consideration before the Regional Level Committee and no decision has been taken till date. In support of his submissions, he placed reliance upon following judgments:

a) Tarlochan Dev Sharma Vs. State of Punjab and others; (2001) 6 SCC 260.

b) Gauri Shankar Rai and others Vs. Dr. Ram Lakhan Pandey, DIOS, Ballia and others; 1984 UPLBEC 166.

c) Prabhu Dayal and others Vs. District Inspector of Schools, Firozabad and others; Special Appeal No.461 of 1993 decided on 11.08.1994.

d) Manohar Lal (Dead) by LRs, Vs. Ugrasen (Dead) By LRs and others; Civil Appeal No.973 of 2007 (with Civil Appeal No.794 of 2007) decided on 03.06.2010.

8. On the other hand, learned Standing Counsel for the respondent No.1 submitted that as the ad hoc appointment of the petitioners was against the rules and regulations, therefore, it is incumbent upon the respondent to stop salary of the petitioner. He submitted that no requisition to U.P. Secondary Education Service Commission was submitted for so called vacancies in L.T. Grade, therefore, there was no occasion for the DIOS to take any action regarding filling up the posts and the action taken by the respondent No.2 - Committee of Management was illegal.

9. He next submitted that the inquiry so called has been completed and as a result, rejecting the approval to the said ad hoc appointments of petitioners has been communicated to respondent No.2.

10. He further submitted that appointment of the petitioners was not made in accordance with law, therefore, there was no occasion to afford any opportunity of hearing to them before passing the impugned order.

11. He submitted that, as the vacancies were not communicated to the Commission before making the ad hoc appointments of the petitioners, the provisions of Section 2 of U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1991 and Section 18 of Act of 1982 are not attracted to present facts and circumstances of the case.

12. He next submitted that only the selection for ad hoc appointment of the petitioners was approved by respondent No.1 and once the ad hoc appointment was found illegal, there is no question for payment of salary and requested that the writ petition being misconceived, is liable to be dismissed.

13. However, learned counsel for respondent No.2 submitted that previous Manager of the Committee of Management of the Institution, namely, Sri Tej Pratap Singh expired on 20.12.1988 and present Manager, namely, Sri Ram Lakhan Misra was appointed in his place vide resolution dated 29.12.1988. One Sri Jeet Bahadur Singh, previous Principal of the institution retired on 30.06.1988 and the present Principal, namely, Sri Sheo Kumar Misra took over the charge as officiating Principal on 30.06.1988. However, at the time of handing over the charge, the then Principal has not handed over the agenda register and proceedings of register of Committee of Management of the institution, therefore, there is no record of proceedings of committee of management available with the institution.

14. However, on the basis of statement of fact made in paragraph 15, 16, 21, 23, 25, 28 & 34, he submitted that the petitioners are teaching on the post of ad hoc Lecturer since 08.07.1988 on the basis of approval granted by the DIOS on 04.07.1988. He submitted that the salary of the petitioners has been stopped vide order dated 22.07.1988 passed by the DIOS adn no prior information in this regard was given to the respondent No.2. He further submitted that respondent No.2 vide letter dated 19.10.1989 has informed respondent No.1 in regard to order dated 06.10.1989 passed by this Hon'ble Court, whereby direction was issued for payment of salary to the petitioners on the post, which they are working.

15. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as the judgments relied upon by learned counsel for the petitioners.

16. To resolve the controversy involved in the matter, relevant paragraphs of the judgments relied upon by learned counsel for the petitioners are being extracted herein below:

a) Tarlochan Dev Sharma (Supra):

"16. In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., AIR 1970 SC 1896, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue."

b) Gauri Shankar Rai and others (Supra):

"10. Both these points are being dealt with together. The legal position seems indisputable namely that the District Inspector of Schools was not invested either under the U.P. Intermediate Education Act or the Regulations framed thereunder to review an order passed on merits recognising a Managing Committee as a body which is for the time being in effective control of the management of the Institution. As an administrative authority, the District Inspector of Schools, could exercise only such powers and functions as were specifically conferred upon him by the applicable statutes. It is thus apparent that the District Inspector of Schools ahd no jurisdiction to review the order dated 13-6-1980. The same view has been taken in the case of Jaswant Singh v. The District Inspector of Schools report in 1980 U.P. Local Bodies and Educations Cases 43, in which a Division Bench of this Court held that the District Inspector of Schoosl after having once passed an order on merits for the limited purpose of performing duties and functions cast upon him under the relevant statutes, recognising any group of individuals as being in effective control of the management, has no jurisdiction to review his order later, unless it is established that the said order was obtained by fraud or misrepresentation. The Division Bench further held that even in cases of fraud or misrepresentation, the District Inspector of Schools must not recall his earlier order without giving opportunity of hearing to the persons in whose favour the earlier order was passed."

c) Prabhu Dayal and others (Supra):

"3. Under Section 18(1) (b) the appointment can be made if the post of a teacher, which has been notified to the Commission, has remained vacant for more than two months. What is required to be done after two months is the appointment issuing advertisement inviting applications for such appointment within the period of two months, is not prohibited. As the process of selection on the basis of which the appointment is to be made, is likely to take time, there is no prohibition in the law against inviting applications for such appointment even before expiry of two months."

d) Manohar Lal (Dead) by LRs (Supra):

21. In Tarlochan Dev Sharma Vs. State of Punjab & Ors. (2001) 6 SCC 260, this Court, after placing reliance upon a large number of its earlier judgments, observed as under:

"In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior." (Emphasis added)

22. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional Authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act."

17. On perusal of aforesaid judgment in the case of Gauri Shankar Rai and others (Supra), it is evident that the DIOS was not invested either under the U.P. Intermediate Education Act or the Regulations framed thereunder to review an order passed on merit and notice has been taken of the case of Jaswant Singh v. The D.I.O.S., in which a Division Bench of this Court has held that the DIOS after having once passed an order on merits for the limited purpose of performing duties and functions cast upon him under the relevant statutes, recognizing any group of individuals as being in effective control of the management, has no jurisdiction to review his order later, unless it is established that the said order was obtained by fraud or misrepresentation. It has further been held that in case of fraud or misrepresentation, the DIOS must not recall his earlier order without giving opportunity of hearing to the person in whose favour the earlier order was passed.

18. In the case of Prabhu Dayal and others (Supra), the Court has held that under Section 18(1)(b) the appointment can be made if the post of a teacher, which has been notified to the Commission, has remained vacant for more than two months, what is required to be done after two months is the appointment issuing advertisement inviting applications for such appointment within the period of two months, is not prohibited. As the process of selection on the basis of which the appointment is to be made, is likely to take time, there is no prohibition in the law against inviting applications for such appointment even before expiry of two months.

19. In the case in hand, two posts of Assistant Teachers (L.T. Grade) fallen vacant in the institution and Manager of the College informed the DIOS vide letter dated 24.07.1987 with request to fill up the vacancies or to issue directions for filling up the said posts, however, The DIOS neither appointed any reserve pool teacher nor took any steps for filling up those two vacancies in L.T. Grade and as such, looking to the interest of the students, the Committee of Management proceeded to make ad hoc appointments to fill up those vacancies.

20. The Committee of Management notified two vacancies for the post of Assistant Teachers (L.T. Grade) vide notification dated 20.05.1988 and after considering the merit of the applicants, found petitioner No.1, namely, Ashok Singh at first place and since one post was to be filled up by the candidate of Scheduled Caste Category, petitioner No.2, namely, Subhash Chand, who was sole candidate belonging to Scheduled Caste Category, was selected for the said post and a resolution in this regard was passed on 12.06.1988 and vide order dated 04.07.1988, the DIOS accorded approval to the ad hoc appointments.

21. After grant of approval by the DIOS, the Committee of Management issued appointment letters to the petitioners on 07.08.1988 and in pursuance thereof, they joined duties as Assistant Teachers (L.T. Grade) in the College on 08.07.1988 and since then, they are regularly functioning as Assistant Teachers (L.T. Grade). However, vide letter dated 22.07.1988, the DIOS issued direction to the Accounts Officer and Manager of Committee of Management that since some complaints were received against the petitioners, therefore, payment of salary could not be made to them as the same requires investigation.

22. However, the Regional Level Committee has considered the matter of appointment of petitioner No.1 on 15.12.2022 and regularized his service under Section 33-A(1-C) of Act of 1982 and in pursuance thereof, the Joint Director of Education issued an order on 17.12.2022, but matter of regularization of service of petitioner No.2 is pending consideration before the Regional Level Committee and no decision has been taken till date.

23. In view of submission advanced by learned counsel for respondent No.2 that no prior information was given to the respondent No.2 by respondent No.1 for stoppage of salary of the petitioners and in view of judgments relied upon by learned counsel for the petitioners in the case of Gauri Shankar Rai and others (Supra) and Prabhu Dayal and others (Supra), that the DIOS has no jurisdiction to review his order later, unless it is established that the said order was obtained by fraud or misrepresentation and in case of fraud or misrepresentation, the DIOS must not recall his earlier order without giving opportunity of hearing to the person in whose favour the earlier order was passed.

24. In the present case, no such fraud or misrepresentation has been proved against the petitioners, therefore, the order stopping salary of the petitioners appears to be arbitrary and without jurisdiction and is liable to be quashed.

25. For the reasons recorded above, the writ petition succeeds and is allowed.

26. The impugned orders dated 22.08.1988 & 19.08.1989 are hereby quashed.

27. However, the petitioners are entitled to get salary w.e.f. their date of joining i.e. 08.07.1988, therefore, direction is issued to ensure payment of salary to the petitioners w.e.f. 08.07.1988.

28. It is further directed that the Chairman, Regional Level Committee will pass orders on the matter of regularization of petitioner No.2 pending before him within a period of three months from the date of production of a certified copy of this order.

Order Date :- 24.08.2023

Adarsh K Singh