Smt. Seema Devi vs State Of ...
2023 Latest Caselaw 1086 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 
Case :- WRIT - A No. - 27232 of 2018
 
Petitioner :- Smt. Seema Devi
 
Respondent :- State Of U.P.Thru.Prin.Secy.Secondary Education U.P.Lko.Andors
 
Counsel for Petitioner :- Raja Ram Pandey,Diwakar Singh Kaushik
 
Counsel for Respondent :- C.S.C.,Pradeep Kumar Singh
 

 
Hon'ble Pankaj Bhatia,J.

Heard learned Counsel for the petitioner and learned Standing Counsel as well as Sri P.K. Singh 'Vats', learned Counsel appearing on behalf of the respondent no.6.

The present petition has been filed by the petitioner stating that the institution known as Adarsh Uchchattar Madyamik Vidyalaya, Ahmamau, Lucknow is an institution imparting education up to intermediate standard. The said institution received grant in aid from the State Government and the payment of salary is governed by The Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971.

It is stated that there is an attached primary section, in which there are 08 posts of Assistant Teachers. It is also stated that in the said institution, the vacancies accrued on account of retirement of one of the Assistant Teacher on 30.06.2002 and death of an Assistant Teacher on 12.02.2004. It is also stated that the vacancies also accrued due to promotion. In pursuance thereof, the Committee of Management vide letter dated 09.11.2015 sought the prior permission to fill up the five posts of Assistant Teachers in the attached primary section. In response to the said application, the DIOS, Lucknow vide letter dated 24.11.2015 granted prior permission to fill up only two posts of Assistant Teachers, one by OBC category and other by SC category. In terms of the said permission granted, the Committee of Management advertised the posts in two daily newspapers, namely, Swatantra Bharat and Pioneer on 08.12.2015 (Annexure-6 to the writ petition). The petitioner appeared in the interview along other candidates. The petitioner and one Avneet Kumar Verma were found suitable for appointment as Assistant Teacher. The Committee of Management sent the papers on 12.01.2016 to the DIOS for approval. The DIOS instead of granting approval forwarded the papers to the Regional Committee which granted the approval on 20.05.2016 (Annexure-11 to the writ petition). On the same day, the DIOS vide his order dated 20.05.2016 granted the approval to the selection of the petitioner as well as Avneet Kumar Verma and in terms whereof the appointment letter was issued on 20.05.2016.

It is stated that initially the petitioner was granted salary up to September, 2017 but the same was stopped from October, 2017, as such, the petitioner approached this Court by filing Writ Petition No.21331 (SS) of 2018 for payment of salary in which the counter affidavit was called. During the pendency of the said writ petition, vide notice dated 18.07.2018, the petitioner was called for by the Joint Director of Education for facing certain inquiry to be held on 30.07.2018 to which the petitioner replied which led to the passing of the order dated 05.09.2018 whereby the financial approval granted to the appointment of the petitioner on 20.05.2016 was cancelled and the DIOS was directed to take necessary action. The order dated 05.09.2018 is under challenge.

The Counsel for the petitioner argues that the financial approval granted to the appointment of the petitioner has been cancelled only on the ground that the appointment was irregular as it is obtained on the basis of incomplete advertisement. It is also observed that while granting the approval, the signature of one of the members was missing. It is also observed that after the approval dated 20.05.2016, the DIOS had passed the approval order on the same day (within short time), as such, there are grave irregularities in the approval order, as such, the same was recalled.

The Counsel for the petitioner further argues that the appointment to the post of Assistant Teacher in the intermediate college where the primary section is attached are governed by the provisions of Chapter-II, Regulation 7 (1)(ka) of the UP Intermediate Education Act, 1921 which merely provides that the appointment shall be made through direct recruitment. It also provides the provisions for minimum eligibility for appointment to the post of Assistant Teacher. It is argued that there is no detailed prescription prescribed for the manner of appointment which are governed by the order dated 25.05.2012 (Annexure-3 to the writ petition) which provides the manner in which the selection sought to be made. He draws my attention to the said provisions contained in the Government Order dated 25.05.2012 which specifically provides that the approval to the appointment shall be made by the DIOS subject to the certain conditions as specified in the Government Order. He further argues that the DIOS cannot refer the matter for further approval as was done. He also argues that merely because the signature of one of the Committee Members was missing, the approval granted earlier on 20.05.2016 cannot be termed as irregular, inasmuch as, the same was nonetheless signed by two persons comprising of the said Committees.

The Counsel for the petitioner argues that in any case, the financial approval was given by the DIOS on 20.05.2016 and the Regional Committee could not have sat over the said approval as an appellate authority as has been done by means of the impugned order. He lastly argues that even the finding is recorded in the impugned order that the advertisement was irregular and in the newspaper having less circulation is perverse as the advertisement was published in the newspapers Swatantra Bharat and the Pioneer which are widely circulated. In the light of the said, he argues that the petition is liable to be allowed. He places reliance on the judgment of this Court in the case of Miss Preeti Gupta vs State of U.P. and others [2015 (33) LCD 1947] as well as the judgment of this Court in the case of Ajit Ram vs District Inspector of Schools, Ballia and others [(2005) 3 UPLBEC 2516].

Learned Standing Counsel, on the other hand, justifies the order by arguing that in terms of the subsequent Government Order dated 19.12.2000, all the issues are to be resolved by the Regional Level Committee and thus the argument to that extent by the Counsel for the petitioner merits rejection. He also places reliance on the specific reply given to the averments made in paragraphs 35 to 40 of the writ petition by placing reliance on paragraph 11 of the counter affidavit.

Considering the submissions made at the bar, the fact as emerges is that the appointments are governed by the provisions of Chapter-II, Regulation 7 (1)(ka) of the U.P. Intermediate Education Act, 1921 which provides for the manner of appointment through direct recruitment, the manner in which the recruitment is to be done continues to be governed by the Government Order dated 25.05.2012 wherein the power of approval granted only to the DIOS.

The issue with regard to the reference to the Regional Level Committee came up for consideration in the case of Ajit Ram vs District Inspector of Schools, Ballia (supra) wherein the Court confronted with the similar issues had held as under:

"4. On the other hand, learned standing counsel has invited the attention of this court to the various Government Orders issued from time to time to indicate that the Regional Level Committee headed by the Joint Director of Education, continues to enjoy the power to scrutinise such appointments and issue such recommendations as are necessary for disbursement of salary. The first Government Order is of 1995, which indicates the work distribution of officers and authorities. It, however, does not indicate that the Regional Joint Director of Education has any power to exercise authority in respect of disbursement of salary of the employees of a recognised Institution under the U.P. Act No. 24 of 1971. Consequently, issuance of the subsequent clarification does not advance the argument of the learned standing counsel any further. However, learned standing counsel relied on the Government Order dated 19.12.2000,wherein for the first lime the Regional Level Committee headed by Joint Director of Education has been given the power and enjoined with the duly to consider such matters which are referred to it, including the matter of payment of salary of any employee of a recognised Institution, This is evident from the perusal of Clause 5 of the last paragraph of the said Government Order dated 19.12.2000. However, the said Government Order says that the matter shall be scrutinized by the Regional Level Committee and recommendation shall be made to the appropriate authority under the Act and Rules for passing an order in accordance with law. The Government Order, therefore, further does not authorise or confer any other authority on the Regional Level Committee or Joint Director of Education to exercise any such power itself, which is specifically conferred on the District Inspector of Schools under a Statue. To put it conversely, the Distt. Inspector of Schools is not prevented or prohibited from exercising his power to disburse the payment of salary under the Payment of Salary Act, ( Act No. 24 of 1971),It appears that the said Government Order became subject matter of scrutiny in a writ petition before the Lucknow Bench in the case of Ardhana Maurya vs State of U.P., wherein an interim order was issued on 7.8.2001 and taking cognizance of the said interim order a clarification was issued by the Secretary of the Department of Secondary Education of Uttrar Pradesh on 16.1.2002, wherein it has been stated that the Government Order dated 19.12.2000 shall not apply in the matters, which are engaging the attention of any court through out the State. Thus such matters in which judicial intervention has taken place, cannot be subject matter of scrutiny by the Regional Level Committee under the Government Order dated 19.12.2000.

5. A perusal of the aforesaid facts and relevant Government Orders, which have been placed before the court, it is obvious that the power of the Distt. Inspector of Schools to make the payment of salary is not subject to any authority and the Distt. Inspector of Schools is under an obligation to pass orders delegated to him under the U.P. Act No. 24 of 1971, order in accordance with the provisions contained therein. Not only this it is obligation of the District Inspector of Schools to pass such an order and ensure the payment of salary to the validly appointed and approved employee, which cannot be either deducted or with held except for, under the contingencies, referred to in the provisions of Act No. 24 of 1971, In these circumstances and in view of the aforesaid provisions indicated herein above, the District Inspector of Schools has to perform the duty of passing a final order in respect of payment of salary of teachers /employees of a recognised Institution, in the event the Institution is under grant in aid list or within the purview of U.P. Act No. 24 of 1971."

The said judgment of Ajit Ram's (Supra) is followed in the case of Miss Preeti Gupta (Supra) wherein this Court has observed as under:

"10. Having considered the arguments raised by the learned counsels appearing for the respective parties, a reference may be had to a judgment of this Court dated 17.10.2005 in the case of Ajit Ram Vs. District Inspector of Schools Ballia & others, Writ Petition No. 66020 of 2005, wherein it has clearly been held that power of District Inspector of Schools to make payment of salary is not subject to any authority and the District Inspector of Schools is under an obligation to pass orders under the powers delegated to him under the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, in accordance with the provisions contained therein. The Court in the said judgment has further observed that it is the obligation of the District Inspector of Schools to pass such an order and ensure payment of salary to a validly appointed and approved employee which cannot be either deducted or withheld except for, contingencies referred to in the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The Court while rendering the aforesaid judgment dated 17.05.22005 in the case of Ajit Ram (supra) has considered the provisions of Government Order dated 19.12.2000 and subsequent Government Order dated 16.01.2002 and has, thus, concluded that the final authority in the matter relating to approval and according financial concurrence of the appointment made in the primary section of intermediate institutions is the District Inspector of Schools."

In view of the law laid down in the case of Ajit Ram (Supra) and followed in the case of Miss Preeti Gupta (Supra), it is clear that the power of granting approval vests only with the DIOS.

In the present case even otherwise the order impugned is liable to be set aside on the ground that if it records that the advertisement was not widely circulated is apparently wrong as the newspapers Swatantra Bharat and Pioneer are having wide circulation. The other ground of expeditious approval on the same day by the Regional Level Committee as well as the DIOS i.e. on 20.05.2016 also does not render the appointment invalid as the same has been tested only in the light of the stipulations contained in Class-5 of the Government Order dated 25.05.2012. There is nothing on record to demonstrate that any of the conditions stipulated in Clause-5 of the Government Order dated 25.05.2012 were non-existent, as such, the impugned order dated 05.09.2018 is set aside.

The matter is remanded to the DIOS to take a decision with regard to the approval strictly in accordance with the mandate of Government Order dated 25.05.2012. While granting approval to the appointment, the same shall only be on the basis of stipulations as contained in Clause-V of the Government Order dated 25.05.2012. The DIOS shall pass the order in the light of the directions given above within a period of two months from the date of production of certified copy of this order.

For the reasons stated above, the writ petition is disposed off.

Order Date :- 11.1.2023

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