Arun Kumar Pandey vs State Of U.P. And 3 Others
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Allahabad High Court

Arun Kumar Pandey vs State Of U.P. And 3 Others on 23 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:93952
 
Court No. - 34							Reserved
 

 
Case :- WRIT - A No. - 28932 of 2014
 

 
Petitioner :- Arun Kumar Pandey
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Gaurav Kumar Chand,Amit Kumar Shrivastava,Brijesh Kumar Pandey,Pramod Kumar Pandey,Radha Kant Ojha,Ramesh Chandra Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble J.J. Munir,J.
 

1. This writ petition has been instituted with a prayer that a mandamus be issued to the respondents to pay the petitioner's salary for his services as an Assistant Teacher, LT Grade with the Janta Inter College, Puranderpur, District Maharajganj.

2. One Ramji Gupta was a CT Grade Teacher with the Janta Inter College, Puranderpur, District Maharajganj (for short, 'the Institution'). He was promoted to the position of an LT Grade Teacher in the month of August, 1988 on ad hoc basis, in consequence of which, a short term vacancy arose in the CT Grade. The vacancy was intimated, according to the petitioner, to the Secretary of the Commission and the District Inspector of Schools, Maharajganj vide letter dated 15.07.1988. Despite intimation of the vacancy, no appointment was made by the Commission. In order to tide over the difficulty in tuitional work, the short term vacancy was moved to be filled up by the Management under the 2nd paragraph of the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 (for short, 'the Second Removal of Difficulties Order'). The Management of the Institution, accordingly, advertised the vacancies in a newspaper and also published it on the notice-board. In response to the advertisement, the petitioner applied. He was interviewed by a duly constituted Selection Committee, who recommended the petitioner on the basis of quality point marks. The petitioner says that he had earned the highest quality point marks. The Committee of Management, by their resolution dated 12.06.1991, decided to appoint the petitioner, on the basis of which a letter of appointment was issued. The papers relating to selection and appointment of the petitioner were submitted to the District Inspector of Schools for approval by the Management vide a letter dated 23.07.1991. No approval was, however, granted. It does not appear to have been refused either.

3. The petitioner instituted Writ Petition No. Nil of 1991 before this Court, where a direction was issued to the District Inspector of Schools to decide the petitioner's representation within fifteen days of receipt of a copy of the representation. Despite the said order, the District Inspector of Schools did not act. This compelled the petitioner to move another writ petition, being Writ Petition No.18652 of 1992. The said writ petition was disposed of by this Court vide order dated 19.05.1998, directing the District Inspector of Schools to decide the petitioner's claim regarding grant of financial approval within three months of receipt of a certified copy of the order made. In compliance with the order dated 19.05.1998, the District Inspector of Schools passed an order dated 13.10.1998, granting approval to the petitioner's appointment and directing payment of salary. This order led to the petitioner receiving salary from the month of October, 1998 to January, 2000, a period of about 16 months.

4. Certain complaints were then laid against the petitioner, which led to the issue of a show cause notice to the Manager of the Institution. The petitioner's salary was stopped. The petitioner approached the higher functionaries in the Education Department, including the Hon'ble Minister, to seek redress. The District Inspector of Schools passed an order dated 30.06.2000, where he directed that upon the petitioner's representation and that of other similarly circumstanced employees, the Hon'ble Education Minister was represented too by the concerned employees for the payment of their salary, as directed by this Court. The Hon'ble Minister had directed on 09.06.2000 that the orders of this Court be complied with.

5. The Manager, by his letter dated 07.04.2000, has assured that there was no illegality attending the appointment of teachers. All teachers/ employees had executed an undertaking that in case their appointments are found invalid, they would be personally liable and that salary paid to them, may be recovered. It was then remarked that papers of some of the teachers were sent to scrutiny of the Audit Department and after the result of the Audit, necessary proceedings would be taken. Since for the present, the matter was being scrutinized and inquired into, the directions of the Hon'ble Minister and this Court be complied with, so that the respondents are not in contempt. The petitioner then moved an application dated 14.12.2001, seeking compliance of the orders made by the District Inspector of Schools himself. The District Inspector of Schools issued letters to the Manager on 21.06.2002, requiring certain documents to be furnished. The petitioner made an application dated 19.07.2004 to the District Inspector of Schools once again, seeking payment of salary, which was not paid despite all these efforts. The District Inspector of Schools issued a letter dated 20.08.2007, requiring the Manager to produce relevant documents. The petitioner, not having still received his salary, represented the matter through applications dated 10.07.2011, 20.09.2012 and 15.07.2013 to the District Inspector of Schools, besides seeking personal audience. No action, however, was taken by the respondents.

6. It is the petitioner's case that having been once approved for the payment of salary, it is unjust and unfair on the respondents' part to deprive the petitioner of his right to receive salary, though he has been regularly working, on the pretext of a pending inquiry by the Audit Department. The petitioner urges that he has been appointed against a short term vacancy in accordance with the Second Removal of Difficulties Order, after following the procedure prescribed. He is, therefore, entitled to the payment of his salary.

7. On a notice of motion being issued on 30.05.2014, a counter affidavit was filed as late as on 11.08.2017 on behalf of the District Inspector of Schools, Maharajganj. To this, a rejoinder affidavit was filed by the petitioner.

8. It appears that the counter affidavit in original was never filed after service of a copy thereof upon the learned Counsel for the petitioner. Accordingly, this Court permitted an authenticated true copy of the same to be filed within three days in the Registry. A copy was filed and acknowledged by the petitioner, on the basis of which, this petition was admitted to hearing on 01.12.2023, which proceeded forthwith. Judgment was reserved.

9. Heard Mr. Brijesh Kumar Pandey, learned Counsel for the petitioner and Mr. Yashwant Singh, learned Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3.

10. In paragraph No.5 of the counter affidavit, it is pleaded that appointment to the post of an Assistant Teacher was made on 12.06.1991 by the Committee of Management. The petitioner was appointed to the said post. A requisition for the post was sent on 15.07.1989, but the District Inspector of Schools did not grant approval as there was a ban on appointment at that time. This led the petitioner to file a writ petition, which was disposed of with a direction on 01.11.1991, requiring the District Inspector of Schools to decide the matter. Since the petitioner was not paid any salary, he filed Writ Petition No.18652 of 1992, where an order dated 22.05.1992 was passed issuing notice. A counter affidavit was filed in compliance on 15.01.1993. The said petition was disposed of vide order dated 19.05.1998, directing the District Inspector of Schools to pass orders within three months.

11. In compliance, the District Inspector of Schools heard the matter and passed an order dated 13.10.1998, approving payment of salary for the petitioner. Complaints then were laid before the District Inspector of Schools, on the foot of which, a report was called from the Manager of the Institution regarding appointments that were irregular. The six teachers, who were appointed, were also given opportunity to adduce evidence. It was at this stage that payment of the petitioner's salary was withheld, pending outcome of all this inquiry upon the validity of appointments. It is pointed out that out of the six teachers, the writ petition filed by Radhey Shyam Pandey was dismissed vide order dated 14.09.2012. The stand taken in paragraph No.9 of the counter affidavit is that the District Inspector of Schools, after hearing the petitioner and finding the appointment irregular, cancelled the same. Surprisingly, however, no date of the order, cancelling approval to the petitioner's appointment, has been mentioned in paragraph No.9 of the counter affidavit or elsewhere. No copy of the order, cancelling approval earlier granted to the petitioner by the District Inspector of Schools, has been annexed. A plea has been raised that the petitioner has approached this Court with a delay of about 14 years. There is also a plea that the District Inspector of Schools, Maharajganj had received a complaint that the Selection Committee had made appointments fraudulently, whereupon payment of salary to the teachers and employees was withheld by the District Inspector of Schools vide order dated 21.01.2000. Upon the reports submitted by the Manager of the Institution, the appointments were found irregular.

12. The District Inspector of Schools, Maharajganj vide his letter dated 29.03.2000 gave opportunity to the teachers, which would include the petitioner to adduce evidence and the teachers were asked why their salaries may not be withheld and an FIR lodged. There is also a plea to the effect that vide his letter dated 06.07.2000, the District Inspector of Schools recommended proceedings under Section 16-D of the U.P. Intermediate Education Act, 1921 to be taken against the Management. There is a specific plea that the petitioner's appointment was also made without a sanctioned post, due to which salary has not been paid.

13. Upon hearing learned Counsel for the parties, this Court finds that there is much cavil on highly disputed questions of fact regarding the existence of a sanctioned post at the relevant time, which led to a short term vacancy, against which the petitioner was appointed. Nevertheless, it also does not appear to be the case that the petitioner's claim is without basis. There is a record about steps being taken by the Management to fill up the CT Grade post, which fell vacant due to promotion of the then incumbent to the LT Grade. The promotion of Ramji Gupta was made in the month of August, 1988 and by then the CT Grade had not been abolished. Later on, it was, and the CT Grade vacancies, gave rise to corresponding LT Grade vacancies automatically in terms of the Government Order dated 04.09.1990. This was also a time when the procedure under the Second Removal of Difficulties Order did not require publication in two newspapers as that requirement came in after the pronouncement of this Court in the Full Bench decision of Kumari Radha Raizada and others v. Committee of Management Vidyawati Darbari Girls Inter College and others, 1994 All LJ 1077 (FB). Therefore, even if the advertisement was on the notice-board, that by itself would not vitiate the petitioner's appointment.

14. What this Court, however, finds is that there is no authoritative determination of the issue by the District Inspector of Schools in terms of an order made, except the order of approval dated 13.10.1998. It is not possible for this Court, given the highly disputed questions of fact that arise, to pass effective judgment in the matter on the state of proceedings as these stand. The prayer is for a mandamus simplicitor to pay salary to the petitioner. There is, in fact, no order made by the Authorities under challenge. Also, on the material brought on record, it is difficult for this Court to form an opinion if the petitioner has a right to be paid salary, and if so, what would be the nature of his appointment and further rights.

15. Therefore, given the case of parties and the scanty evidence produced, which does disclose a case where there ought be some authoritative determination in the first instance by the Education Authorities, this Court is of opinion that the matter be placed by the Joint Director of Education, Gorakhpur Region, Gorakhpur before the Regional Level committee, who shall examine the matter and pass a clear order with reference to the case of parties and evidence on record, deciding the petitioner's right to hold the post of an Assistant Teacher in the LT Grade with the Institution and receive salary borne on State grant. If the petitioner is found to be validly appointed, the nature of his tenure, according to the provisions of U.P. Act No.5 of 1982, would also be determined. The Regional Level Committee, Gorakhpur Region, Gorakhpur shall pass necessary orders within a period of one month of receipt of a copy of this order by the Joint Director of Education, Gorakhpur Region, Gorakhpur in accordance with law and communicate the same within a week of the decision being rendered to the petitioner.

16. This petition is disposed of in terms of the aforesaid.

17. There shall be no order as to costs.

18. Let a copy of this order be communicated to the Regional Joint Director of Education, Gorakhpur Region, Gorakhpur by the Registrar (Compliance).

Order Date :- 23.5.2024

Anoop

(J.J. Munir, J.)