Devendra Kumar Sharma vs State Of U.P. And Others on 5 March, 2018

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Allahabad High Court

Devendra Kumar Sharma vs State Of U.P. And Others on 5 March, 2018

The batch of writ petitions are primarily raising challenge to the order dated 27 April 2010 passed by the fourth respondent-District Inspector of Schools, Ghaziabad1, whereby, absorption of the petitioners on Class-IV post in the intermediate institution has been cancelled. The petitions are being heard together, on consent, as it involves similar facts and law.

Mahanand Mission Harijan Viddyalaya Inter College is an institution duly recognized and in grant-in-aid of the State, which is governed by the Intermediate Act, 19212 and Regulations framed thereunder. Petitioners claim to have been appointed on Class-IV post on 1 July 1996. Their appointment was approved by DIOS on 6 July 1996. It appears that on an audit objection, salary bill of the petitioners was stopped on 21 July 1998 for the reason that they were appointed beyond the sanctioned strength of Class IV post. Aggrieved, petitioners filed a petition bearing Writ Petition No. 35212 of 1998 (Devendra Kumar Sharma & 4 others vs. District Inspector of Schools, Ghaziabad & 3 others), which was disposed of on 13 November 1998 directing the DIOS to consider their representation and pass reasoned and speaking order thereon. Pursuant thereof, DIOS passed an order on 17 March 1999, wherein, it is noted that petitioners have been appointed beyond the sanctioned strength but on humanitarian ground their candidature may be considered for absorption as and when vacancies on Class IV post arise in the institution. Despite the said order of the DIOS, salary of the petitioners was not released. Aggrieved, they again approached this Court by filing a petition bearing Writ Petition No. 22161 of 2000 (Devendra Kumar Sharma & 4 others vs. Director of Education (Secondary), U.P., Allahabad & 5 others), wherein, an order came to be passed on 25 May 2000 directing DIOS to pay salary to the petitioners or to show cause within a month. Thereafter, DIOS passed an order on 22 April 2006, whereby, all the petitioners were absorbed/adjusted against substantive vacancies that fell vacant in the institution between 1 April 2002 to 1 June 2004. The tabular portion of the order is extracted:

Ø0 uke fu;qfDr frfFk fjfDr dk dkj.k vkSj fjfDr dh frfFk lek;kstu dh frfFk 1 Jh eUujkt flag 01@07@96 Jh dqUnu yky 31-03-02 dks lsok fuo`Rr 01@04@02 2 Jh nsosUnz dqekj 'kekZ 01@07@96 Jh Nsnh yky 30-06-02 ** ** 01@07@02 3 Jh jfoUnz flag oekZ 01@07@96 Jh jkt flag 31-07-02 ** ** 01@08@02 4 Jh fuekZunRr 01@07@96 Jh xqjok 31-05-04 ** ** 01@06@04 5 Jh 'kSysUnz nhf{kr 01@07@96 Jh lR;ohj flag 31-05-04 ** ** 01@06@02 It is, therefore, clear that petitioners were appointed in 1996 not against substantive vacancies but were subsequently adjusted after a lapse of ten years against substantive posts that had fallen vacant between 2002-2004. It appears that pursuant to the order of the DIOS, salary of the petitioners was released from 1998. Consequently, petitioners withdrew their petition (Writ Petition No. 22161 of 2000) on 3 August 2006.

Thereafter, it appears that upon completion of five years of service, one of the petitioner again approached this Court by filing a petition bearing Writ Petition No. 59026 of 2006 (Devendra Kumar Sharma vs. State of U.P. & others), seeking a direction to consider the claim of the petitioner for promotion on the post of Assistant Clerk. This Court vide order dated 28 October 2006 noticing the illegal appointment declined to grant any relief to the petitioner, rather, directed that the salary being paid to the petitioners be stopped forthwith. The operative portion is extracted:

"In the opinion of the Court the directions issued for absorption of the petitioner against substantive vacancy is totally unfounded inasmuch under the provisions of U.P. Intermediate Education Act, 1921 and Rules or Regulations framed thereunder, the District Inspector of Schools has not been conferred any authority of law to direct absorption against substantive vacancies, caused in a recognized Intermediate College, the same can be filled in accordance with Regulations 101 to 107 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act.

This Court is therefore, satisfied that on the strength of order of the District Inspector of Schools dated 27th February 2008 petitioner is not entitled for payment of salary.

Till the next date of listing, petitioner shall not be paid his salary without the leave of the Court. If work is being taken from petitioner, the liability of payment of salary shall be on the shoulders of the Management itself."

The order was subjected to challenge in appeal being Special Appeal No. 1448 of 2006 (Devendra Kumar Sharma vs. State of U.P. and others). However, on the request of the petitioner, writ petition came to dismissed as withdrawn and the interim order dated 28 October 2006 was vacated. The relevant portion of the order passed in special appeal on 17 November 2006 is extracted:

"After filing the writ petition for getting promotion from class IV to class III, the appellant-writ petitioner's salary was stopped even as a class IV employee by the impugned order dated 28.10.2006 which is under appeal. This is the reason why the writ petitioner-appellant is withdrawing the writ petition. The writ petition will stand dismissed. The interim order dated 28.10.2006 will stand vacated and discharged with immediate effect.

We have not entered into the merits of the case; the proceedings taken in the writ and in this appeal will be without prejudice to the rights and contentions of the parties in future."

Thereafter it appears that petitioners were promoted to the post of assistant clerk on 4 April 2008.

One of the petitioner again approached this Court by filing a petition being Civil Misc. Writ Petition No. 11043 of 2010 (Devendra Kumar Sharma vs. State of U.P. & 4 others), seeking a direction to correct the seniority of the petitioner on Class IV post, which was disposed of directing the respondent-authorities to take an appropriate decision on the representation. In the meantime, another Class IV employee (Ravindra Singh Verma) who was not promoted filed a petition bearing Writ Petition No. 19393 of 2010 (Ravindra Singh Verma Vs. State of U.P. and others) for relief. In the aforesaid writ petition, the following order came to be passed on 9 April 2010, which reads thus:-

"Let the District Inspector of Schools, Ghaziabad appear before this Court on 15th April, 2010 along with an affidavit explaining as to under which authority of law, an order for Samayojan against Class IV vacancies has been issued by him and as to why this Court may not issue direction that the salary paid to such Samayojeet employees be not recovered from his personal assets.

Put up this matter on 15th April, 2010 as unlisted matter."

Pursuant thereof, the impugned order came to be passed by the DIOS cancelling/recalling the order dated 27 February 2006, by which petitioners were absorbed (samayojan) on Class-IV post.

It is informed that petitioner of Writ Petition No. 19393 of 2010, has died and the petition has abated.

Learned counsel for the petitioner, in the aforementioned factual backdrop, submits:

i) that the impugned order has been passed without affording opportunity;

ii) that petitioners were subsequently promoted on the next higher post, therefore, their initial appointment/absorption on Class IV post could not have been cancelled;

iii) that petitioners were duly appointed after following the procedure prescribed under the Regulations, therefore, were rightly absorbed against future substantive vacancies;

iv) that impugned order is patently illegal and bad in law.

In rebuttal, learned standing counsel submits:

i) that appointment on Class IV post is to be made by direct recruitment against substantive vacancies and not by adjustment/regularization against future vacancies;

ii) that admittedly petitioners were appointed beyond the sanctioned strength of Class IV post which was illegal;

iii) that there is no provision under the Intermediate Act or Regulations for absorption of an employee against future substantive vacancies;

iv) that initial appointment and subsequent absorption of the petitioners is void ab initio, petitioners are not entitled to salary from the state exchequer;

v) that the appointment and subsequent adjustment of the petitioners is violative of Article 14 and 16 of the Constitution of India;

vi) that filing of successive petitions without having any legal right tantamounts to abuse of process of the Court.

Rival submissions fall for consideration.

Having gone through the pleadings and material brought on record the short question that arises in the instant case is whether the petitioners were entitled to regularization/adjustment against future Class IV vacancy.

Petitioners were appointed on Class IV post on 1 July 1996 in the intermediate institution and received salary intermittently, consequently, petitioners approached this Court at every stage for release of their salary since 1998. DIOS was fully aware of the fact that petitioners were appointed beyond the sanctioned strength which is reflected from the order dated 17 March 1999, therefore, according to the petitioners, he placed the matter before the Director of Education for taking a decision on humanitarian ground. After lapse of more than six years, DIOS by order dated 22 April 2006, released the salary upon adjusting the petitioners against vacancies that occurred between 2002-2004, which in my opinion, is illegal and against the provisions of the Intermediate Act, and Regulations framed thereunder. In a recognized institution, in grant-in-aid, DIOS has not been conferred any authority or power to direct absorption against substantive vacancies caused in the institution. On the contrary, the Class IV vacancy can be filled in accordance with the Regulations 101 to 107 of Chapter-III of the Regulations. Under the scheme of the Intermediate Act and Regulations, DIOS is to ensure strict compliance of the provisions framed thereunder. It is not open for DIOS to take humanitarian or sympathetic approach merely for the reason that the petitioners were appointed beyond the sanctioned strength. Such an appointment on direct recruitment post, dehors the rules, is violative of Article 14 and 16 of the Constitution.

Since the appointment/services of the petitioners were terminated not in terms of the rules but in view of the commission of illegality in the selection process i.e. being selected beyond the sanctioned strength and thereafter being adjusted against future vacancy, their appointment would be void and nullity. (See: Inderpreet Singh Kahlon vs State of Punjab3).

Regularization cannot be a mode of appointment. A post must be created or sanctioned before filling it up. There were no vacancies on which the petitioners could be appointed. Such employees could not have been regularized as regularization is not a mode of appointment. Regularization/adjustment can be done in accordance with the rules and not dehors the rules. (See: Indian Drugs & Pharmaceuticals Ltd. vs Workmen, Indian Drugs & Pharmaceuticals Ltd.4).

The recruitment of the candidates in excess of the notified vacancies, keeping them in waiting and appointing the persons from the waiting list in the vacancies arisen subsequently is violative of Article 14 and 16 of the Constitution (See: Ashok Kumar vs Chairman, Banking Service Recruitment Board5).

Right to be considered for employment subject to just expectation is recognized by Article 16 of the Constitution of India. Right of employment itself is not a fundamental right but in terms of both Article 14 & 16, each person similarly situated has a fundamental right to be considered, therefor. In the instant case, petitioners were adjusted after 10 years against future vacancy to be filled by direct recruitment against the provisions of the Regulations, thus, depriving equal opportunity to similar situated persons of being considered for appointment on the date of vacancy.-- (See: Anuj Garg & others vs Hotel Association Of India & others6).

State is responsible to pay the salary of only such employees, who are appointed against sanctioned post in accordance with the Regulations. In the instant case, it appears that the petitioners, Management/Principal of the institution in connivance with DIOS caused loss to the state exchequer by releasing the salary of employees despite of the fact that the DIOS was fully aware that petitioners' were appointment beyond the sanctioned strength. The appointment at the best was a private arrangement between the petitioners and the institution and it would certainly not bind the State to pay the salary.

The Uttar Pradesh High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971, regulates the payment of salaries to teachers and other employees of High Schools and Intermediate College receiving aid out of the State funds. Section 9 provides that no institution shall create a new post of teacher or other employee except with the previous approval of the Director, or such other officer. Section 9 reads thus:

"Approval for post.― No institution shall create a new post of teacher or other employee except with the previous approval of the Director, or such other officer as may be empowered in that behalf by the Director."

In other words, the State is bound to release and pay the salary of such employees, who have been appointed against sanctioned & approved post and not otherwise.

In absence of sanction for creation of a post from the Director, no salary can be paid to a teacher teaching a recognized subject. Granting recognition for teaching would not amount to sanction of creation of a post. (See: Mohammed Fuzail Ansari v. State of U.P.7) Salary can be paid only on sanctioned post of a teacher. There can be no presumption of sanction even if the subject concerned has been given sanction. (See: Gopal Dubey v. D.I.O.S. Maharajganj and others8).

Submission of learned counsel for the petitioners that petitioners were not given an opportunity of hearing before passing the order is devoid of merit in the facts and circumstances of the present case for the reason that it is not in dispute that the petitioners were appointed beyond the sanctioned strength and were subsequently adjusted against future vacancy, therefore, in the circumstances the appointment was void ab initio for which no plausible explanation has been furnished by the petitioners in the writ petitions and the material brought on record.

The principle of natural justice need not to be stretched too far so as to include in its ambit and scope of providing of opportunity of hearing a full fledged detail inquiry. It all depends on the facts and circumstances. If some document, order, notification, circular found to be ingenuine and illegal, however, has been utilised for the purpose of procuring employment then the declaration that such order, document, notification or circular is bogus, forge, fake, non-existent by author or competent authority in whose name these are said to be issued, then beneficiary candidates need not be given opportunity of hearing in the light of the verdict of Supreme Court in U.P. Junior Doctor's Action Committee vs. Dr. B. Sheetal Nandwani and others9.

The Hon'ble Supreme Court in State of U.P. & others vs. U.P. State Law Officers Association & others10, has observed as under:-

" This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by the same door. .......The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them."

In State of M.P. and others Vs. Shyama Pardi and others11, the Supreme Court has held that the question of violation of principle of natural justice does not arise in a case where the persons are not possessing the prerequisite qualifications prescribed by the statutory rules. Para 5 of the said judgment, reads thus:

"5. It is now an admitted fact across the Bar that the respondents had not possessed the prerequisite qualification, namely 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of ANM. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents. The question or violation of the principles of natural justice does not arise."

In Kendriya Vidyalaya Sangathan & others vs. Ajay Kumar Das & others12, the facts therein reflected that the respondents were appointed by K when his services had been terminated and his continuation in service itself was under a cloud and in an inquiry into serious lapses had been noticed in the matter of recruitment. The orders issued after the termination of services of K were not valid, the question of observance of principles of natural justice would not arise. Even though, the respondents may not have been a party to the proceedings before the High Court, if the appointing authority itself did not have power to make appointment by reason of termination of his services, it is futile to contend that the respondents should have been served with notices in that regard. On the pretext that the order of termination of K's services had not been served upon him it cannot be contended that the appointments of the respondents would be valid.

On specific query, learned counsel for the petitioner failed to show any provision, wherein, Management/Principal of the institution had authority in law to make appointment beyond the sanctioned post, thereafter, regularization/absorption of such employees against future substantive vacancies. Modus operandi of the Management/Principal of the institution in appointing the petitioners, and thereafter, getting their appointment absorbed against future vacancies is violative of Article 14-16 of the Constitution of India. Process of appointment could have been initiated by the institution only when substantive vacancy had occurred in the institution. The appointment of the petitioners in 1996 and their continuation, thereafter, is an internal arrangement between the petitioners and the Principal. State is not a party to such an arrangement nor can bind the State to pay the salary.

Process of absorption on direct recruitment post was not permissible in absence of any rule to that effect, further, it is also not clear whether the reservation policy of the State were complied is an issue. In case, reservation policy of the State was not followed, that would also render the appointment illegal.

Having due regard to the facts and circumstances of the case, I find no merit in the aforementioned writ petitions.

The writ petition is, accordingly, dismissed.

Order Date :- 5.3.2018 Mukesh Kr.

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Allahabad High Court