Vijay Pratap Singh vs D.I.O.S. And Others
2024 Latest Caselaw 25123 ALL

Allahabad High Court

Vijay Pratap Singh vs D.I.O.S. And Others on 1 August, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:124287
 
Court No. - 9
 

 
Case :- WRIT - A No. - 1764 of 2001
 

 
Petitioner :- Vijay Pratap Singh
 
Respondent :- D.I.O.S. And Others
 
Counsel for Petitioner :- J.P.Singh,D.S.M.Tripathi,Siddharth Khare
 
Counsel for Respondent :- C.S.C.,Satya Prakash Mishra
 

 
Hon'ble Subhash Vidyarthi,J.
 

Order on Civil Misc. Restoration Application No. 5 of 2023.

1. This is an application for recall of the order dated 25.07.2023 whereby the petition was dismissed for non-prosecution, giving liberty to the petitioner to file an application for recall within a period of thirty days.

2. The application for recall of order has been filed merely in a week.

3. The cause shown in affidavit, filed in support of the application, is sufficient.

4. The application for recall of order dated 25.07.2023 is allowed.

5. The writ petition is restored to its original number.

Order on Writ Petition.

1. Heard Sri Ashok Khare, learned Senior Advocate, assisted by Mr. Parasher Pandey, learned Counsel for the petitioner, Sri Pradeepta Kumar Shahi, learned Counsel for opposite party no. 1- District Inspector of Schools, Ballia and Sri Satya Prakash Mishra, learned Counsel appearing for opposite party no. 2- The Committee of Management, Jangali Baba Inter College, Garhwar, District- Ballia.

2. By means of the present writ petition, the petitioner has challenged validity of the order dated 17.01.2000, passed by the District Inspector of Schools, Ballia, holding that the ad hoc appointment of the petitioner on a short term vacancy that arose due to ad hoc promotion of a Lecturer (Biology) to the post of a Principal, was not made in accordance with law and refusing to acknowledge the same.

3. Aggrieved by the non-payment of salary, the petitioner had filed Civil Misc. Writ Petition No. 30260 of 1996 in this Court, which was disposed of by means of an order dated 03.02.1999, providing that the petitioner may file a representation before the District Inspector of Schools, who shall decide the same.

4. The petitioner submitted a representation, which has been rejected by means of the impugned order, wherein it is recorded that the Manager of the Institution stated that the petitioner was appointed on 01.10.1994 on a short term vacancy created due to ad hoc promotion of one Ram Sagar Singh to the post of Principal. The petitioner stated that he had been appointed on 01.10.1994 and was working continuously since then. The documents available on record, before the District Inspector of Schools, revealed that by means of a letter dated 11.10.1994, the Manager of the Institution had sought approval for appointment of the petitioner on ad hoc basis on a vacancy created due to ad hoc promotion of Ram Sagar Singh, Lecturer (Biology), to the post of Principal. The letter of the Manager was accompanied by a copy of the advertisement published in newspaper, a certified copy of the resolution dated 18.09.1994, passed by the Managing Committee and other documents. It was recorded in the resolution of the Managing Committee that an advertisement for making the appointment was published in daily newspaper, Anant Varta and, thereafter, the petitioner was appointed on ad hoc basis in furtherance of a resolution of the Committee of Management.

5. The District Inspector of Schools has stated in his impugned order that Form-C mentions the name of three candidates, one of whom did not possess a Masters degree as his result had not been declared till the relevant date. The other two candidates, where the petitioner and one Narvdeswar Singh, both of whom had passed all their examinations in Second Division and in such circumstances, quality point marks of both the candidates will be equal. No ground has been disclosed for placing the petitioner above the other candidate Narvdeswar Singh.

6. It is further stated that the documents do not reveal the nature of vacancy created due to ad hoc promotion of Ram Sagar Singh, Lecturer (Biology), to the post of Principal and it appears that the Management has made the appointment treating the vacancy to be permanent. The District Inspector of Schools further stated that in Form- A, the nature of vacancy is recorded as temporary. The procedure for making temporary appointments is provided in the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (for short, 'the Second Removal of Difficulties Order') and a quality point table has not been prepared in accordance with the provisions contained in para 3(i) of the Second Removal of Difficulties Order. The Management of the Institution had not obtained prior approval for making ad hoc appointment of the petitioner, as per the provisions contained in para 3(ii) of the Second Removal of Difficulties Order and, therefore, the petitioner's appointment was made in violation of the provisions contained in the Second Removal of Difficulties Order.

7. The next ground, mentioned in the impugned order for rejection of the petitioner's appointment, is that the advertisement for making appointment was published in one newspaper only whereas in the judgment of a Full Bench of this Court in the case of Kumari Radha Raizada v. Committee of Management Vidyawati Darbari Girls Inter College and others, (1995) 2 UPLBEC 1137 = 1995 Lab IC 112 (FB), advertisement was required to be published in two newspapers. Merely three persons had appeared for interview, one of whom was ineligible.

8. The District Inspector of Schools has further stated that one Sri Ram Rai was working on the post of Principal on ad hoc basis till 14.07.1994. He had filed Civil Misc. Writ Petition No. 30526 of 1993 in this Court, challenging the ad hoc appointment of Ram Sagar Singh to the post of Principal of the College, which was pending on the date of the order. For the aforesaid reasons, the District Inspector of Schools held that the petitioner's appointment was not valid. An interim order was passed in the Writ Petition on 17.01.2001 providing that if the petitioner is working on the post of Lecturer in Biology in Jangali Baba Inter College, Garhwar, District- Ballia, he shall be permitted to continue to work

9. The opposite party no. 2 has filed a counter affidavit inter alia stating that Ram Sagar Singh, Lecturer (Biology), was promoted as ad hoc Principal of the College and, therefore, a short term vacancy of Lecturer (Biology) arose on 01.10.1994, the date on which the petitioner was appointed as a Lecturer. When the petitioner did not get salary, he filed Writ Petition No. 30260 of 1996, which was disposed of by means of an order dated 03.02.1999 passed by this Court. It is in furtherance of the order passed by this Court, that the District Inspector of Schools has rejected the petitioner's claim for payment of salary vide order impugned dated 17.01.2000.

10. The petitioner has filed a rejoinder affidavit stating that the present writ petition was dismissed in default on 25.07.2023 and, thereafter, payment of his salary was stopped. The petitioner had filed an application for recall of the order dismissing the writ petition and during pendency of that writ petition, the Regional Level Committee has passed an order dated 27.01.2024 refusing the regularization of the petitioner's services on the sole ground that his writ petition had been dismissed in default by means of an order dated 25.07.2023.

11. The learned Counsel for the petitioner has drawn attention of the Court to the averments made in paragraph 18 of the writ petition, wherein the qualifications of the petitioner and the other candidate-Narvdeswar Singh have been disclosed, which are as follows:

Examination Petitioner Narbdeswar Singh

High School 59.6% 50%

Inter 47.6% 52%

B.Sc. 56.4% 49.8%

M.Sc. 59.7% 51.5%

12. Apparently, the educational accomplishments of the petitioner were better than those of the other candidate and, therefore, the Committee of Management does not appear to have committed any illegality in choosing the petitioner over the other candidate, who had secured lesser marks in High School, B.Sc. and M.Sc. Examinations.

13. So far as the question of publication of the advertisement in only one newspaper, as against a direction issued by this Court in Kumari Radha Raizada (supra) for issuance of publication in two newspapers is concerned, the submission of the learned Counsel for the petitioner is that the case of Kumari Radha Raizada was decided on 12.07.1994 and it does not have a retrospective effect. It was published in journals later on in the year 1995 whereas the advertisement, in furtherance of which the petitioner was appointed, was issued on 25.08.1994. The judgment of Kumari Radha Raizada had not been widely published till issuance of their advertisement and, therefore, the advertisement was issued in one newspaper only as against the direction issued in Kumari Radha Raizada for its publication in two newspapers. In any case, it was the duty of the opposite party no. 2 itself to publish the advertisement in a proper manner and the opposite party no. 2 himself cannot challenge any illegality or irregularity in publication of the advertisement.

14. As the advertisement was published in a newspaper, it was sufficient for bringing the process of appointment to the knowledge of aspirants. Non-publication of advertisement in two newspapers can at the best be said to be an irregularity, which does not vitiate the selection process, moreso when no affected person challenged the appointment by stating that he was deprived of his right to participate in the selection process because of non-publication of the advertisement in one newspaper only.

15. The District Inspector of Schools has stated that it does not appear from the papers as to what was the nature of the vacancy created due to ad hoc promotion of Ram Sagar Singh, but at the same time, he has stated that in Form-A, submitted by the Committee of Management, the nature of vacancy is mentioned as temporary. Therefore, when the District Inspector of Schools has himself stated that in Form A it was written that the nature of vacancy was temporary and he has further recorded that the vacancy was created due to ad hoc promotion of Lecturer (Biology) to the post of Principal, the District Inspector of Schools was not justified in refusing to sanction payment of salary to the petitioner on the ground that the nature of vacancy on which the petitioner had been appointed was not clear.

16. So far as the question of pendency of Civil Misc. Writ Petition No. 30526 of 1993 filed by Ram Rai is concerned, there is no averment in the impugned order as to how the pendency of the aforesaid writ petition affects the validity of the petitioner's appointment and his right to receive salary.

17. During the pendency of this writ petition, the petitioner was continuously getting salary in compliance of the interim order dated 17.01.2001 passed by this Court. However, when the petition was dismissed for want of prosecution with liberty to the petitioner to file a recall application, payment of salary to the petitioner was stopped. Thereafter, an application for recall of the order dated 25.07.2023 was filed on 30.07.2023 which is allowed by means of a separate order passed today and the writ petition has been restored.

18. After dismissal of the writ petition, the Regional Level Committee considered the regularization of the petitioner's services and rejected the same on the sole ground that the writ petition had been dismissed in default.

19. In view of the aforesaid discussion, this Court is of considered opinion that the impugned order dated 17.01.2000, passed by the District Inspector of Schools, Ballia, holding that the petitioner's appointment had not been made validly and, therefore, he is not entitled to be paid salary, is not sustainable in law. The rejection of the petitioner's regularization made during the period this writ petition had been dismissed for want of prosecution, although an application for recall had been filed merely six days thereafter and was pending consideration, for the sole reason that the writ petition had been dismissed in default, without considering the petitioner's regularization on its merits, is also unsustainable in law.

20. Accordingly, the writ petition is allowed. The impugned order dated 17.01.2000, passed by the District Inspector of Schools, Ballia, is hereby quashed and the order dated 27.01.2024, passed by the Regional Level Committee, refusing to regularize the services of the petitioner on the sole ground that the writ petition had been dismissed for want of prosecution, is also unsustainable in law.

21. The petitioner shall be permitted to work as a Lecturer (Biology) in Jangali Baba Inter College, Garhwar, District- Ballia and will be paid his salary till his claim for regularization is finally decided.

22. The matter is remanded to the Regional Level Selection Committee for considering regularization of the petitioner's ad hoc services on the post of Lecturer (Biology) in Jangali Baba Inter College, Garhwar, District- Ballia afresh, in accordance with law and keeping in view the observations made in this judgment, within a period of two months from the date of receipt of a certified copy of this order.

Order Date :- 1.8.2024

Prashant D.

(Subhash Vidyarthi,J.)