Ram Pyare Tripathi vs State Of U.P. And 4 Others
2023 Latest Caselaw 25731 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:182672
 
Court No. - 35
 

 
Case :- WRIT - A No. - 13108 of 2023
 

 
Petitioner :- Ram Pyare Tripathi
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Nand Lal Pandey,Pradeep Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.
 
with
 
Case :- WRIT - A No. - 51868 of 2016
 

 
Petitioner :- Ram Pyare Tripathi And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Shashi Prakash Rai,Nand Lal Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

1. Writ A No. 13108 of 2023 (Ram Pyare Tripathi Vs. State of U.P. & 4 Others) (leading writ petition), Writ A No. 51868 of 2016 (Ram Pyare Tripathi Vs. State of U.P) (connected writ petition).

2. Since common question of law and facts are involved in both the writ petitions, thus, they are being decided by a composite order. For the sake of brevity the writ petition no. 13108 of 2023 is treated as leading writ petition and writ petition no. 51868 of 2016 is treated as connected writ petition.

3. Heard Sri N.L. Pandey along with Sri P.K. Dwivedi, learned counsel who appear for the writ petitioners in both the writ petitions as well as Sri Pradeep Kumar Shahi, learned Additional Chief Standing Counsel who appears for respondents No. 1 to 4 in the leading writ petition and respondents No. 1 to 3 in the connected writ petition and Sri Gaurav Bajpai, learned counsel who appears for the fifth respondent in the leading writ petition and fourth respondent in the connected writ petition.

4. The learned counsel for the parties have made a statement at bar that already a counter affidavit has been filed on behalf of the fourth respondent, C/M Panchayat Inter College Khanpur, Azamgarh in the connected writ petition, thus, they do not propose to file any further affidavit in this regard.

5. With the consent of the parties, the writ petitions are being decided at the fresh stage.

6. The case of the writ petition is that fifth respondent in the leading writ petition and fourth respondent in the connected writ petition, Panchayat Intermediate College Khanpur, District Azamgarh which is recognized under the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971 stand applicable.

7. It is further the case of the writ petitioner that two posts, Assistant Teacher in C.T. Grade became vacant on account of promotion of one Sri Prithviraj Singh and Sri Julmi Yadav as Assistant Teacher L.T. Grade giving room to certain vacancies. As per the writ petitioner consequent to the issuance of the Government Order issued in the year 1989 the post of Assistant Teacher C.T. Grade became a dying cadre, however, the writ petitioner, Ram Pyare Tripathi in the leading writ petition claims to have been appointed on the post of Assistant Teacher L.T. grade on 30.06.1990. So far as the writ petitioner in the connected writ petition namely, Ram Sadan Yadav is concerned he also claims to have been appointed as Assistant Teacher L.T. Grade on the same date i.e. 30.06.1990 and the writ petitioners further claim to have been accorded joining on 02.07.1990.

8. Since the writ petitioner in the leading writ petition and the writ petitioner in the connected writ petition were not paid salary so they preferred Writ A No. 31001 of 1992 (Ram Sadan Yadav & Another Vs. State of U.P. & Others) in which all 26.08.1992 the following orders were passed.-

"Until further orders of this Court the respondents are restrained from making any appointment to the post of Assistant Teacher C.T. Grade in pursuance of the advertisement dated 07.08.02 in the institution concerned."

9. Since no counter affidavit was filed, thus, on 27.09.1993 in Writ A No. 31001 of 1992 further orders were passed on 27.09.1993 which is quoted hereunder.-

"Heard the learned counsel for the petitioner and the learned standing counsel.

No counter affidavit has been filed.

The petitioners were appointed teachers in the C.T. Grade in Panchayat Inter College Kanpur Sarain Meer, District Azamgarh on ad hoc basis and have been working as such since 2nd July, 1990. Learned standing counsel contended the C.T. Grade was abolished in the year 1989 and no appointment could be made of teacher in the C.T. Grade. As stated above the respondents have not filed any counter affidavit. In the circumstances an interim mandamus is issued directing the respondent No. 1 to 3 to pay salary to the petitioners in the C.T. Grade from the date of their appointment and continue to pay the same till their services are depended with in accordance with law or to show cause by filing a counter affidavit, within two months from today. The interim order dated 26th August, 1992 stand modified accordingly."

10. However the Writ A No. 31001 of 1992 came to be dismissed by this Court by virtue of the order dated 28.09.2012 which is quoted hereunder.-

"Heard Shri M.D.Singh Shekhar, Senior Advocate assisted by Shri Sunil Kumar Singh, Advocate on behalf of the petitioner and the Standing Counsel on behalf of the state-respondents.

Petitioners before this Court seek a writ of mandamus directing the respondents to ensure payment of salary to the petitioners as ad hoc C.T. Grade teacher.

Facts in short leading to the present petition are as follows :

Panchayat Inter College, Sarain Meer, District Azamgarh is an aided and recognized Intermediate College (herein after referred to as the Institution). Provisions of Intermediate Education Act, 1921, those of U.P. Secondary Education Services Selection Board Act, 1982 (herein after referred to as the Act, 1982) and those of U.P. Act No. 24 of 1971 are fully applicable to the teachers and staff of the said institution.

According to the petitioners, Julmi Yadav and Prithvi Raj Singh who were working as C.T. Grade teacher in the institution were promoted as L.T. Grade teacher. As a result whereof two vacancies in C.T. Grade were caused in the institution. In paragraph 3 it is stated that the vacancies were clear vacancies. The Committee of Management notified the two vacancies in C.T. Grade on the Notice Board of the institution on 01.05.1990 for ad hoc appointment. The petitioners applied and were selected. They were appointed on 30.06.1990.

It is on the strength of these allegations the petitioners seeks payment of salary from the State exchequer.

In the opinion of the Court the claim set up by the petitioners is wholly misconceived. The appointment of the petitioners is in violation of Article 14 of the Constitution of India and in teeth of Act, 1982.

This Court may clarify that the Full Bench of this Court in the case of Km. Radha Raizada vs. Committee of Management, V.D.B.I.C. and others reported in 1994 UPLBEC, 1551 has explained the law on the subject with reference to various amendments made in U.P. Act No. 5 of 1982 from time to time. It has specifically been laid down that notification of a substantive vacancy on notice board for ad hoc appointment is no Advertisement. Such vacancies even for the purpose of ad hoc appointment have to be advertised in at least two newspapers having adequate circulation. This according to the Full Bench judgment is the procedure to be followed under U.P. Act No. 5 of 1982. Even otherwise C.T. Cadre had been declared a dying cadre under the Government Order dated 04.12.1989 i.e. the C.T. Grade post on becoming vacant stood converted into L.T. Grade. The contention raised on behalf of the petitioners to the effect that two clear vacancies were caused in C.T. Grade due to promotion of the two incumbents against which ad hoc appointment in C.T. grade could be made is wholly misplaced.

Although the petitioners have worked for years together under the interim order of this Court but it must be brought to an end now. Their appointment has been found to be bad in law, as a matter of fact void in view of Section 16 of Act 5 of 1982.

The Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi and others, reported in 2006 (4) SCC 1, (Paragraph 43) has specifically laid down that any amount of service by an illegal appointment because of an interim order of the High Court will not confer any right upon the petitioner to seek absorption or to be made permanent. The High Court shall not issue any order perpetuating any illegal appointment. (Ref. Paragraph 4 and 13 of the judgment). Paragraph 13 reads as follows :

"What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab Vs. Jagdip Singh & Ors. (1964 (4) SCR 964). It was held therein, "In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status."

In view of the aforesaid, the present writ petition is dismissed.

Interim order, if any, stands discharged."

11. It is apparent from the record that a special appeal no. 2058 of 2012 (Ram Sadan Yadav & Others Vs. State of U.P. & Another) were preferred against the order of the learned Single Judge 28.09.2012 which also came to be rejected on 31.08.2015. Since according to the writ petitioners they were entitled to be conferred the benefit of payment of salary in view of the fact that by virtue of the Government Order dated 24.05.2004 the date declaring the C.T. Grade as a dead cadre was extended to 19.02.1981 instead of 04.12.1989 so the writ petitioner in this regard preferred the connected writ petition no. 51868 of 2016 (Ram Pyare Tripathi & Others Vs. State of U.P. & Another) seeking following reliefs.-

"i) To issue a writ, order or direction in the nature of mandamus directing the respondent no. 3- District Inspector of Schools, Azamgarh to consider and decide the representation of the petitioners dated 02.05.2016, which was received in the office of respondent No. 3- District Inspector of Schools, Azamgarh on 27.06.2016 as expeditiously as possible preferably within the time stipulated by this Hon'lbe Court to meet the ends of justice;

ii) To issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;

iii) To award cost of the writ petition to the petitioners."

The said writ petition was entertained by this Court on 02.11.2016 wherein the following orders were passed.-

"On being declared the C.T. Grade as Dying Cadre, the petitioners have claimed to be a teacher of L.T. Grade, but they have not brought on record any such order declaring them as L.T. Grade Teacher.

Therefore, I hereby call upon learned Standing Counsel to seek instruction from the respondent No. 3 as to whether the petitioners have been declared as L.T. Grade Teachers or not, by the next date.

List on 15 November 2016, in the additional cause list."

12. In the said writ petition a counter affidavit has been filed by the fourth respondent, Committee of Management of the institution in question sworn by the manager of the institution in question dated 06.03.2017, however, from the record it is apparent that the official respondents have not filed any counter affidavit and there is no rejoinder affidavit whatsoever available on record. As per the writ petitioner, subsequently, on the basis of the representation preferred by the writ petitioner on 12.02.2023 the District Inspector of Schools, Azamgarh proceeded to pass an order granting approval and payment of salary to the appointment of the writ petitioner. However, on 12.04.2023 the District Inspector of Schools, Azamgarh proceeded to cancel the order dated 12.02.2023 passed by it earlier on the ground that since the matter is itself sub-judice before this Court in Writ A No. 51868 of 2016, thus, payment of salary would be depended upon the final outcome of the said writ petition. This led to filing of the leading writ petition wherein the order dated 12.04.2023 passed by the District Inspector of Schools, Azamgarh was questioned and a mandamus was also sought for payment of post retiral benefits since the writ petitioner stood superannuated on 31.03.2023.

13. The leading writ petition came up for consideration before this Court on 10.08.2023 wherein the following orders were passed.-

"Sri Nand Lal Pandey, learned counsel for the writ petitioner submits that the writ petitioner was appointed as an Assistant Teacher (L.T. Grade) on 30.06.1990. When approval was not being accorded, he preferred Writ - A No. 31001 of 1992 (Ram SadanYadav and Another vs. State of U.P. and others), in which there was a restrain order from making appointment on the post of L.T. Grade Teacher, pursuant to the advertisement in question, which according to the writ petitioner stood dismissed on 28.09.2012 and the writ petitioner gathered the knowledge of the same in the month of February, 2013. It is further the case of the writ petitioner that since, in the wake of certain government orders issued from time to time his claim ought to be considered for being granted payment of salary, he preferred Writ A No. 51868 of 2016, which is pending. However, post his retirement on 31.03.2023, the District Inspector of Schools, by virtue of his order dated 12.04.2023 has set aside the order dated 12.02.2023 granting him the salary and other benefits. He submits that the order has been passed in violation of principles of natural justice.

Put up this case on 22.08.2023, as fresh, along with the record of Writ - A No. 51868 of 2016, showing the particulars of the parties as well as the name of the counsels on the next date fixed."

14. Both the writ petitions have been consolidated together and they are before this Court today.

15. Sri N.L. Pandey along with Sri P.K. Dwivedi, learned counsel for the writ petitioner in the leading writ petition as well as the writ petitioner in the connected writ petition have sought to argue that the order dated 12.04.2023 setting aside the order dated 12.02.2023 is in violation of principles of natural justice. He submits that once the writ petitioner was made admissible to the payment of salary by virtue of the order dated 12.02.2023 then at least proprietory demanded that the writ petitioner ought to have been put to notice before cancelling the order by virtue of the impugned order in question.

16. Submission is that once certain rights stands crystallized in favour of the writ petitioners then it cannot be divested without affording opportunity of hearing at the same tantamounts to violation of principles of natural justice in that regard.

17. Sri Pradeep Kumar Shahi, learned Additional Chief Standing Counsel, on the other hand, submits that the writ petitioner cannot be allowed to plead prejudice particularly in view of the fact that the present facts of the case are explicit and clear as though the writ petitioner claims to have been granted appointment as Assistant Teachers L.T. Grade on 30.06.1990 and assumed charge on 02.07.1990 pursuance to the arising of the vacancies on account of promotion of two incumbents but so far as the payment of salary and the legality of their appointment is concerned the same has been held to be illegal by virtue of the judgment and order of this Court dated 28.09.2012 passed in Writ A No. 31001 of 1992 (Ram Sadan Yadav & Others Vs. State of U.P.) and the Intra-court Appeal No. 2058 of 2012 has also been dismissed, thus, according to him there was no question of payment of salary particularly when the appointment of the writ petitioner was held to be illegal, thus, according to him the order dated 12.02.2023 passed by the District Inspector of Schools, Azamgarh was an illegal order and it was rightly canceled.

18. Sri Pradeep Kumar Shahi, learned Additional Chief Standing Counsel further submits that the only course open for the writ petitioner as of today is to prefer appropriate proceedings for getting the orders recalled in that regard or to approach the Hon'ble Apex Court against the same.

19. Confronted with the said situation Sri N.L. Pandey and Sri P.K. Dwivedi who appears for the writ petitioners in both the writ petitions does not dispute the said facts, however, according to them, the writ petition be dismissed as withdrawn with the liberty to them to take appropriate proceedings before the competent court of law in that regard.

20. To such a submission, Sri Pradeep Kumar Shahi, learned Additional Chief Standing Counsel has no objection as according to him legal course is open in that regard.

21. Considering the submission of the rival parties this Court is of the opinion that no effective relief can be granted to the writ petitioner.

22. The writ petition is dismissed leaving it open to the writ petitioner to take appropriate legal proceedings before the appropriate court of law as advised and available under law.

Order Date :- 21.9.2023

Rajesh