Allahabad High Court
Bheem Ram And Another vs State Of U.P. And 7 Others on 8 April, 2025
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:50054
Judgment reserved on : 04.04.2025
Judgment Delivered on : 08.04.2025
Court No. - 6
Case :- WRIT - A No. - 34794 of 2017
Petitioner :- Bheem Ram And Another
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Shiv Shankar Pd Gupta
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Shiv Shankar Prasad Gupta, learned Counsel for petitioners, Sri Zameel Ahmad Azmi, learned counsel for respondent Nos.7 and 8 and Sri Ashish Kumar Singh Nagvanshi, learned A.C.S.C. for State.
2. The petitioners have set up a case that they were appointed as Assistant Teachers on 01.07.1986, after due process by the then Committee of Management of Harijan Kanya Primary Pathshala Lohra and their appointments were approved by the District Basic Education Officer, Azamgarh by an order dated 30.6.1988.
3. It is further case of petitioners that the school was brought under grant-in-aid in 1994 and the petitioners' names were required to be sent for financial approval, however, then Manager of Committee of Management has committed fraud and instead of their names, names of some other Assistant Teachers were sent. Therefore, financial approval was not granted to the petitioners.
4. In aforesaid circumstances, the petitioners have filed a Writ Petition No.26867 of 1994, which was disposed of by an order dated 25.10.2005 to consider their representations (copy of the order dated 25.10.2005 is not on record).
5. Learned counsel for the petitioners has submitted that in compliance of above order, an Inquiry Report dated 25.03.2006 was submitted by the District Social Welfare Officer, Azamgarh to the Director, Social Welfare Department, Uttar Pradesh Lucknow, that petitioners name were mentioned in the inspection report submitted by then Principal of the school, however, in the report of 1990-91, then names were deleted and name of other persons were included in the list though they were closely related to the then Manager of Committee of Management. It was observed in the said report that the name of petitioners were wrongly deleted and name of other persons were wrongly sent despite they were not eligible for appointment.
6. Similarly, on basis of above report a subsequent report dated 12.01.2007 was submitted by the Deputy Director Social Welfare Azamgarh Division to Director, Social Welfare, Uttar Pradesh stating similar version. The relevant part thereof is mentioned hereinafter:-
"7- जिला समाज कल्याण अधिकारी आजमगढ़ के पत्र दिनांक 25-3-2006 के साथ तत्क जिला समाज कल्याण अधिकारी श्री लल्लन सिंह की निरीक्षण आख्या दिनांक रहित संलग्नक- रूप में प्रस्तुत की गयी है जिसमें श्री भीमराम श्री रमाशंकर राम श्रीमती अनीता देवी के नाम पृष्ठ संख्या-2 के प्रथम प्रस्तर क्रम संख्या-4,5,6 पर उल्लिखित हैं। विद्यालय के वार्षिक विवरण पत्र वर्ष 91-92 जिस पर श्री गोविन्द दास के हस्ताक्षर हैं, पृष्ठ संख्या-3 के प्रथम प्रस्तर के क्रम सं०-4,5,6 पर श्री भीमराम सहायक अध्यापक श्री रमाशंकर राम सहायक अध्यापक श्रीमती अनीतादेवी सहायक अध्यापक के नाम उल्लिखित है जो तत्कालीन जिला समाज कल्याण अधिकारी आजमगढ़ द्वारा हस्ताक्षरित है। जिला समाज कल्याण अधिकारी के पत्र दिनांक 25-3-2006 संलग्नक-4 के रूप में निरीक्षण आख्या दिनांक 1-8-91 जो सतीश चन्द्र प्रधनाध्यापक द्वारा प्रमाणित है जिसमें प्रन्धक के हस्ताक्षर उपलब्ध नहीं है प्रस्तुत की गयी है, की छायाप्रति में जिला समाज कल्याण अधिकारी आजमगढ़ के हस्ताक्षर भी दृष्टिगोचर नहीं हो रहे हैं। निरीक्षण आख्या दिनांक 1-8-91 के पृष्ठ सं०-2 प्रथम प्रस्तर पर श्री रमाशंकर राम श्री भीमराम एवं श्रीमती अनीता देवी के नाम हटा दिये गये हैं एवं इनके स्थान पर क्रमशः श्री विद्याधर, श्री लीलाधर, श्री नन्हकू राम के नाम उल्लिखित हैं।"
7. Learned counsel further submitted that despite above referred two reports in favour of the petitioners that their names were wrongly deleted and instead name of others were illegally send, still the Director Social Welfare Department by order dated 30.03.2009 rejected representation of the petitioners on a ground that they were untrained teachers and there was no record that their appointments were approved by the Basic Shiksha Adhikari. The relevant part thereof is mentioned hereinafter:-
"इस संबंध में यह उल्लेख करना है कि श्री रमाशंकर राम श्री भीमराम एवं अनीता देवी की नियुक्ति श्री बापू हरिजन कन्या पाठशाला लोहरा आजमगढ़ के प्रबंधक श्री हरिजन दास द्वारा दिनांक 1-7-86 को जारी किया गया है। यह अध्यापक अप्रशिक्षित दिखाये गये हैं, नियुक्ति का अनुमोदन बेसिक शिक्षा अधिकारी आजमगढ़ से प्राप्त किये जाने का उल्लेख नहीं है और, न ही उक्त याचीगणों की नियुक्ति का अनुमोदन शासन स्तर से करने हेतु जिला समाज कल्याण अधिकारी, आजमगढ़ के स्तर से प्रस्ताव प्राप्त हुआ है।
उक्त से स्पष्ट है कि याचीगणों की नियुक्ति में बेसिक शिक्षा अधिनियम, 1975 के नियमों का अनुपालन नहीं किया गया है, ऐसी स्थिति में याची का प्रत्यावेदन दिनांक 5.12.2005 तर्कहीन एवं बलहीन होने के कारण निरस्त करते हुये एतद्द्वारा निस्तारित किया जाता है।"
8. The petitioners being aggrieved by above order, have filed a Writ Petition No.40132 of 2009, which was dismissed by the Single Bench by an order dated 06.08.2009. For reference, the order dated 06.08.2009 in its entirety is reproduced hereinafter:-
"Heard learned counsel for the petitioner and learned Standing counsel for State respondents.
Petitioners before this Court claim appointment in Sri Bapu Harijan Kanya Primary Pathshala Lohra, Azamgarh, which is admittedly recognised primary school. Since they were not provided salary from the financial assistance provided by the State Government, a writ petition was filed before this Court being Civil Misc. Writ Petition No.26867 of 1992. The writ petition was decided under judgment and order dated 25th October, 2005 with a direction upon the Director, Social Welfare, U.P. Lucknow to examine the grievance of the petitioners. The Director under the impugned order dated 30th March, 2009 has recorded two findings of fact:
(a) petitioners were untrained at the time of appointment.
(b) there is nothing on record to establish that their appointment was ever approved by the Basic Shiksha Adhikari.
The aforesaid findings of the Director are being questioned before this Court on the ground that the appointment was offered by the District Social Welfare Officer as he was maintaining the said institution and therefore there was no need of approval of appointment of the petitioners being obtained from the Basic Shiksha Adhikari.
I am of the considered opinion that under the statutory rules applicable to the institution approval of Basic Shiksha Adhikari was necessary and further teacher training is an essential qualification prescribed for the post in question. Learned counsel for the petitioner was not able to successfully assail the findings of fact recorded by the Director that the petitioners were untrained at the time of appointment and there was nothing on record to establish that their appointment was approved by the Basic Shiksha Adhikari. The plea that the fault, if any, with the respondents, will not improve the case of the petitioner.
There is no illegality or infirmity in the order passed by the Director.
The writ petition lacks merit and is accordingly dismissed."
9. Learned counsel further submitted that thereafter aforesaid order was challenged by the petitioners by way of filing a Special Appeal No.303 of 2024 before a Division Bench of this Court.
10. The said Special Appeal was allowed by an order dated 26.10.2016 and the impugned order therein was set aside, with the direction to consider claim of the petitioners. The relevant part of the said order is reproduced hereinafter:-
"Having heard Sri S.S.P. Gupta, the learned counsel for the appellant/writ petitioners and Standing Counsel for the State, we find that there is a Government Order dated 28.3.1990, which provides that if Assistant Teachers are appointed as untrained teachers, in that event, the teacher would be entitled to a salary in accordance with the existing prevalent rules of the Departments instead of a regular salary. The appellants have also annexed an order no. 686 of 1998, dated 30th June, 1988 issued by the Zila Basic Shiksha Adhikari, Azamgarh, by which the appointment of the petitioners have been approved.
In the light of the aforesaid, we are of the opinion that the order of the Director cannot be sustained. We accordingly, quash the order of the Director Social Welfare dated 25th October, 2005 as well as set aside the order of learned Single Judge dated 6th August, 2009 passed in Civil Misc. Writ Petition No. 40132 of 2009, Rama Shanker and another Vs. State of U.P. and others. The Special Appeal as well as the writ petition are allowed. The matter is remitted to the Director Social Welfare, U.P. Lucknow to re-examine the representation of the petitioners in the light of the aforesaid order within three months from the date of production of the certified copy of this order.
In the circumstances of the case, there shall be no order as to costs."
11. Learned counsel further submitted that thereafter they submitted a representation dated 21.11.2016. However, without considering the order passed by Division Bench of this Court, the Director Social Welfare Department by impugned order dated 04.05.2017 rejected the representation. The relevant part thereof is mentioned hereinafter:-
"1-याचीगण श्री भीमराम पुत्र श्री बीरबल एवं श्री रमाशंकर पुत्र श्री मुक्खू की नियुक्ति विद्यालय प्रबंध समिति द्वारा नहीं की गयी है। वर्ष 1991-92 में तत्कालीन जिला समाज कल्याण अधिकारी, आजमगढ़ श्री लल्लन सिंह द्वारा निदेशालय को प्रेषित निरीक्षण आख्या एवं वार्षिक विवरण पत्र में याचीगण के नाम का उल्लेख नहीं है।
2- याचीगण की नियुक्ति दिनांक 01.07.1986 या कभी भी विद्यालय पर नहीं की गयी है और न ही प्रबंध समिति द्वारा इनका नाम जिला बेसिक शिक्षा अधिकारी आजमगढ़ के कार्यालय को अनुमोदन के लिए भेजा गया है।
3- याचीगण द्वारा फर्जी एवं कूट रचित ढंग से अभिलेख तैयार करके मा० उच्च न्यायालय में योजित कर उच्चाधिकारियों को गुमराह करने का प्रयास किया जा रहा है।
4- विभिन्न तिथियों में समय-समय पर उच्चधिकारियों द्वारा किए गए निरीक्षण में भीमराम एवं रमाशंकर राम विद्यालय पर अध्यापक कार्य करते हुए उपस्थित नहीं पाये गये हैं।
5- शासनादेश दिनांक 31.03.1994 द्वारा आवर्तक अनुदान सूची में लिया गया जिसमें अध्यापक के 09 पर स्वीकृत किये गये। शासन द्वारा स्वीकृत पद के सापेक्ष श्री सतीश चन्द्र, श्री हरिहर प्रसाद, श्री विद्याधर, श्री लालधर, श्री नन्हकूराम, श्रीमती चमेली देवी, श्रीमती गिरिजा कुमारी एवं श्री निरहूराम कार्यरत है, जिन्हें वर्तमान में समाज कल्याण विभाग आजमगढ़ द्वारा वेतन अनुदान दिया जा रहा है।
6- यहां यह भी उल्लेख करना है कि अनुसूचित जाति कन्या प्रा०पा० लोहरा, आजमगढ़ निजी प्रबंधाधिकारण द्वारा संचालित बेसिक शिक्षा विभाग द्वारा मान्यता प्राप्त एवं समाज कल्याण विभाग द्वारा अनुदानित विद्यालय है। जिसमें अध्यापकों की नियुक्ति का अधिकार प्रबंधतंत्र में निहित है। वर्ष 1994 में शासनादेश दिनांक 31.03.1994 द्वारा प्रश्नगत विद्यालय को आवर्तक अनुदान के पूर्व विद्यालय के प्रबंधक द्वारा समाज कल्याण विभाग को प्रेषित वार्षिक विवरण पत्र प्रस्तुत किया गया है, जिसमें श्री सतीश चन्द्र, हरिहर प्रसाद, श्री विद्याधर, श्री लाधर, श्री नन्हकूराम, श्रीमती चमेली देवी एवं श्रीमती गिरिजा कुमारी अध्यापकगण नियुक्त/कार्यरत दर्शाये गये हैं। जिसमें याचीगण श्री भीमराम एवं श्री रमाशंकर राम अध्यापकों का नाम उल्लिखित नही है।
उक्त तथ्यों से स्पष्ट है कि याची श्री भीम राम एवं रमा शंकर द्वारा हरिजन कन्या प्रा०पा० लौहरा सठियाव, आजमगढ़ में अध्यापन कार्य नहीं किया गया है। उक्त दोनों अध्यापक शासन से अनुमोदित अध्यापक नहीं है, इन्हें वेतन दिये जाने का कोई औचित्य नहीं है।
अतः मा० उच्च न्यायालय के आदेश दिनांक 26.10.2016 के अनुपालन में याचीगण श्री भीम राम एवं श्री रमाशंकर, सहायक अध्यापक अनुसूचित जाति कन्या प्रा०पा०, लौहरा सठियांव, आजमगढ़ के प्रत्यावेदन दिनांक 21.11.2016 उपरोक्तानुसार एतद्द्वारा निस्तारित किया जाता है।"
12. Learned counsel for the petitioners submitted that aforesaid reasons were not legally correct since not only there were two reports in their favour, but approval granted by the Basic Shiksha Adhikari, Azamgarh dated 30.06.1988 was not taken note of. Learned counsel also submitted that the appointments of other persons were de hors of Rules, since they were related of the Manager of the Committee of Management and he also referred paragraph no.4 of the Writ Petition that it was not denied by the respondents in their counter affidavit:-
"That the petitioners after selection were appointed as Assistant Teachers on 01.07.1986 by the committee of management and as such their appointments were also approved by District Basic Education Officer, Azamgarh on 30.06.1988 by an approval order dated 30.06.1988. A true copies of appointment letters dated 01.7.1986 and approval order dated 30.06.1988 of petitioners are being filed here with and marked Annexure No.1 to the writ petition"
13. It was also argued that entire proceeding was conducted ex-parte, since no personal hearing was provided.
14. Per contra, Mr. Zameel Ahmad Azmi, learned counsel for respondent nos.7 and 8, referred following paragraphs of the counter affidavit:-
"5. That with regard to the contents of paragraph no.4 of the Writ Petition it is submitted that the petitioners appointment is neither in accordance with Rules not it has been approved by any competent authority.
6. That with regard to the contents of paragraph no.5 of the Writ Petition it is submitted that in the aided institution power of appointment is vested in Management and the petitioner's appointment is not in accordance with Rules.
8. That with regard to the contents of paragraph nos.9, 10, 11 & 12 of the Writ Petition it is submitted that in compliance of order dated 25.10.2005 passed in writ petition no.26867/1994 Director, Social Welfare U.P. by means order dated 30.03.2009 had decided the representation dated 05.01.2005 of the petitioner in which it was found that the procedure prescribed under U.P. aided Basic Schools Teachers Recruitment as well as terms and conditions provided under Rules, 1975 as amended on 1977 was not followed in the petitioners' appointment and the same had been done in contravention of Rules. More so, neither any approval had been obtained from District Basic Education Officer, Azamgarh in respect of their appointments.
10. That with regard to the contents of paragraph nos.14, 15, 16, 17, 18 & 19 of the Writ Petition it is submitted that in compliance of order dated 26.10.2016 passed in Special Appeal No.303/2014, preferred against order dated 06.08.2009, notices had been issued to the petitioners and Manager of the Institution to remain present for hearing. After hearing the matter, examining and perusing all the records and materials, representation dated 21.11.2016 had been decided by means order dated 04.05.2017. Perusal of order dated 04.05.2017 would go to show that the appointment of Satish Chandra Harihar Prasad, Sri Vidyadhar, Sri Lakdhar, Sri Nanhku Ram, Smt. Chameli Devi and Smt. Girija Kumar was of prior to 1994, i.e., before issuance of Government Order dated 31.3.1994 by which institution was taken under grant-in-aid list and in the said list the names of the petitioners were not mentioned, which clearly transpires that petitioners were appointment after 1994.
It is further submitted that against total 09 sanctioned posts of teachers Satish Chandra Harihar Prasad, Sri Vidyadhar, Sri Laldhar, Sri Nanku Ram, Smt. Chameli Devi and Smt. Girija Kumari re working regularly who are being paid salary from Social Welfare Department.
11. That with regard to the contents of paragraph nos.20, 21, 22, 23, 24, 25 & 27 of the Writ Petition it is submitted that in the enquiry report of District Social Welfare Officer, Azamgarh dated 25.03.2006 and report of Deputy Director, Social Welfare, Azamgarh Region, Azamgarh dated 12.01.2007 this fact could not be clear that whether Sri Ramashankar Ram and Sri Bheem Ram have been appointed in the Institution in question legally or illegally. Further it is significant to mention here that in the year 1991-92 the then District Social Welfare Officer, Sri Lallan Prasad had sent annual detail chart in which petitioners' names were not mentioned. Those teachers has neither been appointed on 01.7.1986 or any other date nor the Management has sent their names for approval before Basic Education Officer, Azamgarh. Hence there is no justification for giving salary to the petitioners."
15. In rejoinder, learned counsel for the petitioners has referred contents of the rejoinder affidavit that averments made in respected paragraphs of Writ Petition were reiterated.
16. Heard counsel for parties and perused the record
17. The case of petitioners is mainly rest upon their respective appointment letters and its approval by the Basic Shiksha Adhikari, Azamgarh vide an order dated 30.06.1988 as well as two reports, wherein their claim were accepted.
18. Per contra, aforesaid stand of the petitioners were denied by the State respondents and have supported the impugned order. Their appointments as well as that approval was denied.
19. The document dated 30.06.1988 is the approval of appointment of the petitioners by District Basic Shiksha Adhikari, Azamgarh. However, said document was neither referred in the impugned order nor denied by the respondents in pleadings.
20. The court also takes notice that there were two reports in favour of the petitioners that on inspection petitioners were found working as well as that their names were wrongly deleted from the list, but the said reports were also not considered in the impugned order.
21. In the aforesaid circumstances, case of the petitioners that they were not granted opportunity to present their case and the impugned order was passed ex parte has substance, specifically when above referred documents were not denied by the State-respondents in their counter affidavit.
22. Accordingly, the Court is of the view that impugned order in present form does not legally survive, accordingly set aside and matter is remitted back to the concerned respondent to pass a fresh order after granting three weeks time to the petitioners to submit their written reply as well after taking note of order of approval as well two reports. The allegations that other persons were appointed, despite they were close relative of the then Manager of school, shall also be taken note of.
23. This writ petition is, accordingly, disposed of.
Order Date :- 08.04.2025
A.N. Mishra / P. Pandey
