Allahabad High Court
Ramapati Mishra {N-State} vs State Of U.P. & Others on 17 December, 2013
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH COURT NO.-17 AFR Judgment Reserved on 22.10.2013 Judgment Delivered on 17.12.2013 WRIT PETITION NO.314 (S/S) OF 1996 Ramapati Mishra, aged about 38 years, son of Sitaram Mishra, resident of Village Hariharpur Sinthaur, Post Office Chamarupur, Pratapgarh Versus
1. State of U.P. through the Secretary, Education, U.P. Civil Secretariate, Lucknow
2. Deputy Director of Education, IV Region, Allahabad
3. District Inspector of Schools, Pratapgarh
4. District Basic Education Officer, Pratapgarh
5. Committee of Management, Higher Secondary School, Tejgarh, Pratapgarh through its President
6. Manager, Committee of Management, Higher Secondary School, Tejgarh, Pratapgarh.
7. Principal, Higher Secondary School, Tejgarh, District Pratapgarh
8. Sri Indra Kant Pandey son of Sri Ram Murti Pandey, resident of Village Pure Jhau, Post Office Tejgarh, District Faizabad.
Counsel for Petitioner: Sri Manish Kumar Counsel for Respondents: Sri Udai Bhan Pandey and Sri Devendra Upadhyay, Standing Counsel.
With WRIT PETITION NO.383 (S/S) OF 1991 Indra Kant Pandey, aged about 28 years son of Sri Ram Murati Pandey, Resident of Village Pure Jhau, Post Office Tejgarh, Tehsil Sadar, District Pratapgrah Versus
1. State of U.P. through Education Secretary, Department of Education, U.P., Lucknow.
2. District Inspector of Schools, Pratapgrah
3. President/Manager of Committee of Management, Higher Secondary School, Tejgarh, Pratapgarh
4. Principal, Higher Secondary School, Tejgarh, Pratapgarh
5. Ghanshyam Pandey, Principal Higher Secondary School, Tejgarh, Pratapgarh
6. Basic Shiksha Adhikari, Pratapgarh
7. Vitta and Lekhadhikari, Office of Basic Shiksha Adhikari Pratapgrah Counsel for Petitioner: Sri Udai Bhan Pandey Counsel for Respondents: Sri Manish Kumar and Sri Devendra Upadhyay, Standing Counsel.
AND WRIT PETITION NO.890 (S/S) OF 1998 Indra Kant Pandey, aged about 35 years, son of Sri Ram Murti Pandey, resident of Village Pure Jhau, Post Office Tejgarh, District Pratapgarh Versus
1. State of U.P. through its Principal Secretary, Secondary Education, U.P., Lucknow
2. Joint Director, Education (Secondary) IV Mandal, Allahabad
3. Regional Deputy Director, Education (Secondary) IV Mandal, Allahabad
4. District Inspector of Schools, Pratapgarh
5. Principal Uchchattar Madhyamik Vidyalaya, Tejgarh, District Pratapgarh
6. Manager, Uchchattar Madhyamik Vidyalaya, Tejgarh, District Pratapgarh Sri Rajesh Chaubey resident of Muneshwar Dutt Upadhyaya Colony Subji Mandi Vivek Nagar, Pratapgarh
7. Rama Pati Misra, Assistant Teacher, Uchchattar Madhyamik Vidyalaya Tejgarh, District Pratapgarh Counsel for Petitioner: Sri Udai Bhan Pandey Counsel for Respondents: Sri Manish Kumar and Sri Devendra Upadhyay, Standing Counsel.
Hon'ble Vishnu Chandra Gupta, J Judgement
1. These three writ petitions are relating to claim of appointment of the petitioners and their continuance on the same post in the same institution and the fact being common to all three writ petitions and common questions of law and facts are involved in all three writ petitions, hence all the petitions are being disposed of by a common judgement.
2. In Writ Petition No.383 (S/S) of 1991, Petitioner Indra Kant Pandey sought relief for quashing the order of termination passed by opposite parties and further to regularize the services of the petitioner and permit him to work and pay him salary along with arrears of the salary.
3. In Writ Petition No.314 (S/S) of 1996, Petitioner Ram Pati Mishra prayed that a mandamus be issued against the opposite parties for making the payment of salary to the post of Assistant Teacher (L.T. Grade) to the petitioner regularly month to month with arrears of salary with effect from 28.07.1993 and to allow the petitioner to work on the post of Assistant Teacher in L.T. Grade in the institution/school.
4. Indra Kant Pandey filed another writ petition being Writ Petition No.890 (S/S) of 1998 with a prayer to issue a writ, order or direction in the nature of certiorari quashing the order dated 17.07.1996 (Annexure-1 to the writ petition) passed by opposite party no.4-District Inspector of Schools, Pratapgarh (hereinafter referred to as 'the DIOS') and also to remove the name of Rama Pati Mishra-opposite party no.7 shown at Sl. No.4 from the order dated 14.11.1996 (Annexure-2 to the writ petition) and further to issue a mandamus against the opposite parties no.4, 5 and 6 to allow the petitioner to serve in the school and pay him salary regularly as per Rules.
5. For deciding all three writ petition, the relevant facts are that school known as Higher Secondary School, Tejgarh, District Pratapgarh (hereinafter referred to as 'the School') was initially recognized as Junior High School and was also grant-in-aid up to the standard of Junior High School. The school was upgraded upto High School but after up gradation from Junior High School to High School, the benefit of grant-in-aid was not extended to the teachers and non teaching staffs of the High School. In the aforesaid School one Dwarika Prasad Singh Assistant Teacher, L.T. Grade was working. After up gradation of school to High School standard vacancies, in LT grade occurred. Dwarika Prasad Singh was thus, promoted by management in LT grade in 1983 subject to approval of competent Authority. Consequently an ad hoc vacancy was occurred in CT grade. Against this vacancy Sri Indra Kant Pandy was appointed on ad hoc basis . He continued in service with breaks. Every time fresh appointment was made and fresh approval was sought.
6. At least the approval granted on 7.1.88 of the appointment of Indra Kant Pandey contains specific condition that in case Dwarika Prasad Singh is reverted or on occurrence of the aforesaid vacancy as substantive vacancy the appointment of Indra Kant Pandey shall stand cancelled automatically. The promotion made of Dwarika Prasad Singh was not approved by Commission. In consequence thereof Dwarika Prasad Pandey joined again on his original post in CT grade on 11.4.1988 and services of Indra Kant Pandey comes to an end. The post of C.T. grade was upgraded to L.T. grade vide Government Order dated 04.09.1990 (Annexure-1 to the aforesaid writ petition). By the aforesaid Government Order, the C.T. Grade was declared to be a dying cadre. Sri Dwarika Prasad Singh died on 02.03.1993. After his death, a vacancy was occurred in L.T. Grade. The substantive vacancy occurred in L.T. grade on account of death of Dwarika Prasad Singh ought to have been filled up by direct recruitment on the basis of selection made under the provisions of U.P. Secondary Education (Service Selection Board) Act, 1982 by Secondary Education Service Selection Board (hereafter referred to as 'the Commission'). There is a provision in U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 (for short 'Order of 1981') to filling up such posts/vacancies on ad hoc basis. In consequence thereof, the vacancy was advertised for appointment on ad hoc basis. The petitioner-Rama Pati Mishra appeared and selected for the post on ad hoc basis in pursuance of the resolution of the Management Committee dated 25.07.1993 in L.T. grade as ad hoc Assistant Teacher by issuing an appointment letter dated 26.07.1993 (Annexure-2 to the Writ Petition no.314 (S/S) of 1996). The petitioner-Rama Pati Mishra joined on 28.07.1993 (Annexure-3 to the Writ Petition No.314 (S/S) of 1996). Thereafter the papers relating to appointment of petitioner-Rama Pati Mishra were sent to the DIOS, Pratapgarh for approval on 08.09.1994. The petitioner-Rama Pati Mishra moved an application (Annexure-4 to the Writ Petition No.314 (S/S) of 1996) for payment of his salary to the Management Committee of the School but the same was not paid for want of approval of DIOS. Thereafter, the petitioner-Rama Pati Mishra moved an application on 01.10.1994 (Annexure-5 to the Writ Petition No.314 (S/S) of 1996) before the DIOS claiming payment of salary and for his approval of appointment. Thereafter on 28.10.1994, a show cause notice was issued by the Principal (Annexure-6 to the Writ Petition No.314 (S/S) of 1996) as to why he may not be removed from the post for want of approval of resolution dated 25.07.1993. The petitioner-Rama Pati Mishra after receiving the show cause notice preferred a Writ Petition No.5223 (S/S) of 1994. The said writ petition was finally disposed of vide order dated 02.11.1994 with a direction to the DIOS to decide the representation of the petitioner-Rama Pati Mishra dated 01.10.1994 and further restraining the Principal for passing of any order in pursuance of the show cause notice dated 24.10.1994 till disposal of the representation.
7. On 03.02.1995, the DIOS accorded financial concurrence to the appointment of petitioner-Rama Pati Mishra. The Management Committee thereafter issued a letter to the Ramapati Mishra informing the approval of appointment and grant of financial concurrence vide his letter dated 01.03.1995 but inspite of that when salary of the petitioner was not paid, the writ petition No.314(SS) of 1996 has been filed.
8. The aforesaid School was taken in grant-in-aid with effect from 14.11.1996 and the name of the petitioner-Rama Pati Mishra was shown at Sl. No.4 as working Assistant Teacher in L.T. grade with effect from 28.07.1993 in the Managerial list and Joint Director of Education IV Region , Allahabad accorded approval of payment of salary to the employees including Rama Pati Mishra vide order dated 14.11.1996.
9. In the counter affidavit filed by Indra Kant Pandey, it has been averred that Dwarika Prasad Singh was actually working in C.T. Grade and was promoted in L.T. Grade and he was appointed on such vacant post as P.T. Teacher in January, 1984. Dwarika Prasad Singh continued to take salary of L.T. Grade till 1988 and at the time of death Dwarika Prasad was working in L.T. Grade since January, 1993 and not on C.T. Grade.
10. It was further alleged that petitioner-Rama Pati Mishra is the relative of Principal of the School, namely, Mr.Ghanshyam Pandey and without getting approval from the DIOS, he permitted the petitioner-Rama Pati Mishra to join his services. It was further averred that wife of Rama Pati Mishra namely Smt. Vimlesh Kumari is the real sister of the son of Ghanshyam Pandey. The name of sister of Vimlesh Kumari, the wife of son of Ghanshyam Pandey, is Babita Devi and name of son of Ghanshyam Pandey and the name of husband of Babita Devi is Ashok Kumar and both Vimlesh Kumari and Babita Devi are the daughters of Ram Krishna Pandey. In support of his contention, he filed documentary evidence in the form of Annexures-CA-6 to 9 of the counter affidavit filed in Writ Petition No.314 of 1996. It was further averred in the counter affidavit that he (Indra Kant Pandey) was working on the aforesaid post but his services were not regularized hence he filed Writ Petition No.383 (S/S) of 1991.
11. It was further averred that the appointment of Ramapati Mishra was wrongly made in the institution. This fact was noticed by the DIOS and disapproval of the appointment of Ramapati Mishra was communicated to the Management vide letter dated 23.09.1993 (Annexure-CA-1 to the counter affidavit filed in Writ Petition No.314 (S/S) of 1996). Again DIOS vide its letter dated 24.12.1994 (Annexure-CA-2 to the counter affidavit filed in Writ Petition No.314 (S/S) of 1996) informed that the stay was operating for appointments hence appointment of Ramapati Mishra cannot be approved. It was also pointed out the the order dated 3.2.1995 was cancelled on the same date vide letter No.9028. Therefore the appointment of Ramapati Mishra is illegal and void.
12. It was further alleged that he (Indra Kand Pandey) is entitled to be regularised under the provisions of Industrial Disputes Act as well as in view of Section 33-A of U.P. Secondary Education(Service Selection Board) Act , 1982.
13. Sri Ramapati Mishra denied the allegations and stated that the petitioner is not entitled to be regularised nor he could continue on the post of L.T. grade being not eligible for the same as is evident from the letter of DIOS dated 17.7.1996 (Annexure-A-10 to the affidavit filed by Ramapati Mishra in support of application for vacation of the interim order dated 13.9.1996 in writ petition No. 383 of 1991) Indra Kant Pandey is only Intermediate with C.P.Ed. and hence he is not qualified for the post of L.T. Grade.
14. It was further averred by Ramapati Mishra that after reversion of Dwarika Prasad Singh and joining again on the post from which he was promoted, Indra Kant pandey worked in another School known as Janta Laghu Madhyamik Vidhyalya, Lalganj District Pratapgarh. In support of his contention he filed the documentary proof. This fact has not challenged by Indra Kant Pandey and submitted that he worked there without any pay at the request of the Manager of that School and did not work at all after 2.2.1990.
15. An application was moved by petitioner-Rama Pati Mishra for payment of the salary on 02.08.2006 in his Writ Petition No.314 (S/S) of 1996 in which an interim order had been passed on 04.08.2006 regarding payment of salary to the petitioner-Rama Pati Mishra with effect from 01.08.2006 onwards. The order which was passed on 04.08.2006 was challenged in Special Appeal No.563 of 2006, Indra Kant Pandey Vs. State of U.P. and others, and the Special Appeal was allowed and finally disposed of vide order dated 27.10.2010. While allowing the Special Appeal, the order dated 04.08.2006 was set aside. During the pendency of this appeal, the order passed by learned Single Judge on 04.08.2006 was also stayed. Hence, it is clear that neither Indra Kant Pandey nor Rama Pati Mishra are getting any salary.
16. Having considered the aforesaid facts, the situation in short emerges as follows:
(i) Dwarika Prasad, Assistant Teacher C.T. Grade working in the School was promoted in L.T. Grade prior to 17.01.1984 with condition that in case his promotion is not approved, he will be reverted.
(ii) In this vacancy, which was occurred due to promotion of Dwarika Prasad Singh, Indra Kant Pandey was appointed in C.T. Grade being P.T. Teacher.
(iii) The promotion of Dwarika Prasad Singh was not approved and in pursuance thereof, he was reverted to the original post and he joined on 11.04.1988 as Assistant Teacher, C.T. Grade.
(iv) After reversion in C.T. Grade, Dwarika Prasad Singh died on 02.03.1993.
(v) As the C.T. Grade post was upgraded in L.T. Grade by Government Order dated 04.09.1990 hence a vacancy was occurred on account of death of Dwarika Prasad Singh in L.T. Grade.
(vi) Rama Pati Mishra was appointed by the Principal on the aforesaid vacancy in pursuance of the resolution of Management Committee dated 25.07.1993 and Rama Pati Mishra in pursuance of appointment letter issued by the Principal on 26.07.1993 joined the school on 28.07.1993.
(vii) The DIOS vide order dated 23.09.1993 and 24.12.1994 expressed his inability to accord approval of appointment of Rama Pati Misrha.
(viii) On 03.02.1995 a letter has been issued regarding approval of appointment of Rama Pati Mishra from the office of DIOS but the same was cancelled on the same day.
17. On the basis of the aforesaid facts, it is crystal clear that so far as Indra Kant Pandey is concerned, he was ceased to work after reversion of Dwarika Prasad Singh, Assistant Teacher when his promotion was not approved as he joined on 11.04.1988. So far as Rama Pati Mishra is concerned he was appointed against vacancy said to have occurred on account of death of Dwarika Prasad Singh.
18. In view of the facts of the case following are the points for determination:
I. Whether the letter issued by DIOS on 3.2.1995 of cancellation of decision of approval of appointment of Ramapati Mishra communicated by letter of the same date is genuine?
II. Whether Indra Kant Pandey has any locus to challenge the appointment of Ramapati Mishra?
III. Whether the vacancy occurred on promotion of Dwarika Prasad Singh, CT grade teacher into LT grade was a substantive vacancy?
IV. Whether Services of Indra Kant Pandey , who was appointed against the vacany occurred on account of promotion of Sri Dwarika Prasad Singh were rightly terminated?
V. Whether Indra Kant Pandy, appointed against the vacancy occurred on account of promotion of Sri Dwarika Prasad Singh is entitled to be regularised under section 33-A of U.P. Secondary Education (Service Selection Board) Act , 1982 amended from time to time?
VI. Whether Indra Kant Pandy, appointed against the vacancy occurred on account of promotion of Sri Dwarika Prasad Singh is entitled to be regularised under the provisions of U.P. Industrial Disputes Act?
POINT NO.1
19. Learned Counsel appearing for Ramapati Mishra submitted that from the perusal of contents contained in paragraph 11 of counter affidavit filed by Sri Kamla Ram, DIOS Pratapgarh on behalf of opposite parties no. 1 to 4 in writ petition No.890 (SS) of 1998, Indra Kant Pandey v. State of U.P. And Ors. It is crystal clear that the letter of cancellation having letter No. Ma./9028-29-/94-95 dated 3.2.1995 is not genuine. More over after approval of appointment of Ramapati Mishra on 03.02.1995 when the institution came in grant in aid in 1995-96 the name of Ramapati Mishra was in the Managerial list and Joint Director Of Education IV Region , Allahabad accorded approval of payment of salary of employees including Ramapati Mishra vide its order dated 14.11.1996.
20. Contrary to it, learned Counsel for Sri Indra Kant Pandey has submitted that merely wrong mention of letter number by itself is not indicative of the fact that letter dated 03.02.1995 by which the approval accorded of the appointment of Ramapati Mishra was cancelled is not a genuine one. He further relied upon letter dated 23.09.1993 and 24.12.1994 by which the DIOS declined to accord approval of appointment of Ramapati Mishra which were annexed to Annexures CA-1 and CA-2 to the counter affidavit of Indra Kant Pandey in writ petition No.314 (SS) of 1996. On this score it has been submitted that letter dated 3.2.1995 approving the appointment of Ramapati Mishra cannot be taken as correct and the DIOS when noticed these things rightly cancelled the letter issued according approval of appointment of Ramapati Mishra.
21. The stand which has taken by the DIOS, Pratapgarh is very clear. He stated that approval was granted on 03.02.1995 for appointment of Rama Pati Mishra. He also stated that cancellation letter dated 03.02.1995 having Letter No.9028 is not genuine which is evident from paragraph 11 of the counter affidavit filed by DIOS in Writ Petition No.809 (S/S) of 1998. Paragraph 11 of the said counter affidavit is reproduced herein below:
"11. That in reply to the contents of paragraph 10 of the writ petition it is submitted that the letter no.9080-83/94-95 dated: 3.2.1995 has been issued recommending the appointment of one Shri Rama Pati Mishra. The true copy of the letter dated: 3.2.1995 is being annexed herewith as Annexure No.CA-2 to this Affidavit. It is further submitted that the letter No.Ma./9028-29/94-95 dated: 3.2.1995 does not seem to be a genuine document as in case the earlier orders were cancelled, the dispatch number has to be after 9080-83 and there is difference in letter numbers, while in the said letter the letter number is 9028-29, which is impossible and doubtful and moreover, in the third line of the said letter, the words mentioned in respect of the recognition of the Institution as, "Vitt Viheen Manyata" upto the High School level, which is not admitted and is incorrect. The provision in respect of giving recognition without giving financial aid came into the force with effect from 14.10.1986, while the said Institution was recognized in the year, 1982 and the financial aid has also been sanctioned to the said Institution upto 1996."
22. It is also not in dispute that the name of Rama Pati Mishra was found place in the managerial list submitted to the Joint Director of Education, IVth Region, Allahabad when the institution came in grant-in-aid in the year 1995-96. It is also not denied that Joint Director of Education, IVth Region, Allahabad accorded approval of payment of salary to teaching and non-teaching staffs vide order dated 14.11.1996 (Annexure-SA-1 to the supplementary affidavit filed by Rama Pati Mishra in Writ Petition No.314 (S/S) of 1996).
23. Learned counsel for Indra Kant Pandey heavily relied upon two letters dated 23.09.1993 and 24.12.1994 by which the DIOS did not accord the approval of appointment of Rama Pati Mishra. In letter dated 23.09.1993, it has been mentioned by the DIOS that due to pendency of Writ Petition No.383 (S/S) 1991 filed by Indra Kant Pandey, the approval cannot be accorded. By letter dated 24.12.1994, the approval was not accorded on the ground that two posts of L.T. grade are sanctioned in High School which is not covered in the grant-in-aid and two teachers are already working, hence approval cannot be accorded so the appointment was not made in accordance with Rules. Consequently, it has been submitted that the DIOS passed the order on 03.02.1995 granting approval to Rama Pati Mishra is illegal but nothing has been brought on record to show that from where Indra Kant Pandey got the letter of cacellation of approval dated 03.02.1995.
24. In view of the stand taken by the DIOS that order of granting approval dated 03.02.1995 is genuine and granting of approval for payment of salary after coming the institution in grant-in-aid passed by the Joint Director of Education leave no room to doubt that the appointment of Rama Pati Mishra was duly approved by the authorities. Therefore, Point No.1 is decided in negative.
POINT NO.2
25. In service jurisprudence locus of petitioner plays an important roll. Normally, the appointment of a person cannot be allowed to challenge by an stranger especially when the department is not disputing the correctness of appointment. In this case, Indra Kant Pandey has not participated in the process of selection in which Rama Pati Mishra was selected. He also have no lien or right to work on the post on which Rama Pati Mishra was appointed and working.
26. It is also worth noticing that Indra Kant Pandey is not eligible to be appointed on the post on which Rama Pati Mishra was appointed which is evident from letter dated 17.071996 (Annexure-A-10 to the stay vacation application filed by Rama Pati Mishra on 13.09.1996 in Writ Petition No.383 (S/S) of 1991) sent by DIOS to Indra Kant Pandey. By this letter Indra Kant Pandey was informed that on account of death of Dwarika Prasad Singh on 02.03.1993, the substantive vacancy occurred was actually in L.T. grade because the C.T. Grade has automatically converted into L.T. grade and qualification of Indra Kant Pandey is only intermediate C.P.Ed., hence he was not qualified for the post of L.T. Grade.
27. Learned counsel for Rama Pati Mishra relying upon the judgment of this Court in the case of Dharam Raj Versus State of U.P. and others, 2009 (27) LCD 1373 submits that only a person who is aggrieved by an order, can maintain a writ petition. He also relied upon the judgment of the Apex Court in the case of Jasbhai Motibhai Desai Versus Roshan Kumar Hazi Bashir Ahmad and others, AIR 1976 SC 578 in which the Apex Court observed that a person claiming to be an aggrieved person must show that he has a more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered.
28. It has been contended by learned counsel for Indra Kant Pandey that he has also claimed regularization on the post on which he was appointed as C.T. grade and if his services are regularized he would have a lien on the post on which Rama Pati Mishra was appointed because in the case of regularization of services of Indra Kant Pandey, the post shall deemed to have been occupied by Indra Kant Pandey after the death of Dwarika Prasad Singh.
29. This controversy could be considered after deciding Point Nos.3, 4, 5 and 6.
POINT NO.3
30. It is no doubt true that Dwarika Prasad Singh on the date of death was working in L.T. grade. It is also not denied that Dwarika Prasad Singh after promotion in L.T. grade was reverted to C.T. grade in the year 1988 and he joined the post in C.T. grade on 11.04.1988. Later on, C.T. grade was declared to be a dying cadre and the post was converted into L.T. grade. By virtue of the same when Dwarika Prasad Singh died on 02.03.1993, the vacancy in L.T. grade was occurred. As the vacancy was occurred due to death of a permanent teacher of the institution, therefore, this vacancy was a substantive vacancy.
31. Accordingly Point No.3 is decided in affirmative and held that vacancy occurred on account of death of Dwarika Prasad Singh in L.T. grade was a substantive vacancy.
POINT NO.4
32. It is not in dispute that the appointment to Indra Kant Pandey was given on the post which become vacant on account of promotion of Dwarika Prasad Singh. It was made clear while appointing him that this appointment would be on ad hoc basis for a limited period and would be terminable in case promotion of Dwarika Prasad Singh is not approved or reverted to its original post or when the vacancy become a substantive vacancy. It is not in dispute that promotion of Dwarika Prasad Singh was not approved and he after reversion due to non approval of promotion in L.T. grade, Dwarika Prasad Singh joined again on 11.04.1988 in C.T. Grade in pursuance of the intimation given to him for not approving his promotion by the Selection Board.
33. Indra Kant Pandey tried to take the plea at later stage that Dwarika Prasad Singh was never reverted but in view of the admission made by Indra Kant Pandey himself in his petition, he cannot be allowed to take a different stand moreover when he himself stated that he was not allowed to work in the institution from 12.04.1988 and claimed his oral termination. This proves that after joining the post by Dwarika Prasad Singh in C.T. grade, the vacancy against which the appointment of Indra Kant Pandey was made came to an end. Certainly, the vacancy occurred on account of promotion was a short term vacancy and while granting the approval by the authorities to the appointment of Indra Kant Pandey from time to time clearly indicates that in case of reversion of Dwarika Prasad Singh his appointment comes to an end, therefore, so called termination of Indra Kant Pandey who actually cease to work on account of joining of Dwarika Prasad Singh cannot be said to be illegal or against the terms of appointment. Hence, the Point No.4 is decided in affirmative.
POINT NO.5
34. Indra Kant Pandey claimed regularisation under Section 33-A of U.P. Secondary Education (Services Selection Boards) Act, 1982 amended from time to time against short term vacancy which was occurred on account of promotion of Dwarika Prasad Singh. Sections 33-A (1) and 33-A (1-B) of the said Act are reproduced hereinbelow:
"33-A. Regularisation of certain appointments. - (1) Every teacher directly appointed, before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc basis against a substantive vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement.
(1-A) ....
(1-B) Every teacher directly appointed after June 12, 1985 and before May 13, 1989 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade, in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921 shall, with effect from the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement."
35. Learned counsel for Indra Kant Pandey submits that Indra Kant Pandey was appointed on 17.01.1984 and continued till 11.04.1988 and his appointment was made in terms of Section 2 of Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985 on ad hoc basis against the substantive vacancy and in accordance with para 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, he was possessing the qualification prescribed for the post so he shall deem to have been appointed in substantive capacity.
36. Learned counsel appearing on behalf of State as well as learned counsel appearing on behalf of Rama Pati Misrha pointed out that Indra Kant Pandey is not entitled to get any protection in terms of Section 33-A (1).
37. The contention is that the case of Indira Kant Pandey for regularization would fall under Section 33-A(1-B) because he is claiming regularization against the vacancy of C.T. Grade.
38. In any of the situation either under Section 33-A(1) or under Section 33-A(1-B) for regularisation, the condition precedent is that the regularisation could be made only against a substantive vacancy and if the appointment is made against such substantive vacancy then only in that event, the regularisation can be carried out, of course, on complying with the other condition also. If any of the conditions for regularisation in the light of the provisions contained in either Sections 33-A(1) or in 33-A(1-B) is not fulfilled, the regularisation cannot be made.
39. Admittedly, the vacancy against which the appointment was made of Indra Kant Pandey was not a substantive vacancy and the same stop to exist on reversion of Dwarika Prasad Singh after disapproval of promotion so either under Section 33-A(1) or Section 33-A(1-B) the petitioner Indra Kant Pandey cannot deemed to be regularized or deemed to have been appointed in the substantive capacity, therefore, the Indira Kant Pandey is not entitled to regularization in view of Section 33-A of the aforesaid Act 1982. Point No.5 is decided accordingly.
POINT NO.6
40. Indra Kant Pandey also sought regularization in the light of the provisions contained in Industrial Disputes Act, 1947. It has been contended that Indra Kant Pandey worked for more than 240 days, hence his services cannot be dispensed with because the department of education is an industry within the meaning of Industrial Disputes Act and Indra Kant Pandey will deemed to be workman. Attention of this Court has been drawn towards two judgments of the Apex Court by learned counsel for the State as well as learned counsel for Rama Pati Mishra. In the case of Miss A. Sundarambal versus Government of Goa, Daman and Diu and others, 1988 UPLBEC 747 (SC), the Apex Court held that teachers employed by education institutions for imparting primary, secondary, graduate or post-graduate education cannot be called as a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The relevant portion of paragraph 10 of the said judgment is quoted hereinbelow:
".........We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post graduate education cannot be called as 'workmen' within the meaning of section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. ....."
41. In the case of Sonepat Co-operative Sugar Mills Ltd. versus Ajit Singh, (2005) 3 SCC 232, while considering the question of interpretation of a workman, the Apex Court had relied upon law laid down in Miss A. Sundarambal's case (supra) and affirmed the same.
42. In view of above, even if the Department of Education comes within the definition of 'Industry' even then the teachers working in the institution cannot be placed within the ambit of word 'workman' in view of law propounded by the Apex Court, and therefore, Indra Kant Pandey cannot claim regularization with the help of provisions of Industrial Disputes Act, 1947. Consequently, the Point No.6 is accordingly decided in negative.
43. After considering the conclusion arrived at different points this Court is of the firm view that Indra Kant Pandey has no locus to challenge the appointment of Ramapati Mishra and point No.2 is accordingly decided.
44. In view of the above the Writ Petition No.314 (S/S) of 1996 (Ramapati Mishra Vs. State of U.P. and others) is liable to be allowed and Writ Petition No.383 (S/S) of 1991 (Indra Kant Pandey Vs. State of U.P. and others) and Writ Petition No.890 (S/S) of 1998 (Indra Kant Pandey Vs. State of U.P. and others) deserves to be dismissed.
45. Consequently, the Writ Petition No.314 (S/S) of 1996 is allowed. The claim of Rama Pati Mishra for issuing mandamus against the opposite parties for making the payment of salary to the post of Assistant Teacher, L.T. grade, regularly and month to month with the arrears of salary with effect from 28.07.1993 is allowed and Rama Pati Mishra is allowed to work on the post until a duly selected candidate by the Board joins.
46. It is further directed that the Management if not sent requisition for regular appointment of a candidate for the post on which Rama Pati Mishra is working, the same shall be sent to the Board through DIOS for selecting a candidate in accordance with law within a period of Two months from the date of production of certified copy of this judgement.
47. Writ Petition No.383 (S/S) of 1991 and Writ Petition No.890 (S/S) of 1998 are dismissed.
48. As Indra Kant Pandey unnecessarily dragged Rama Pati Mishra in long drawn litigation on untenable grounds and that too without locus, therefore, this Court is of the opinion that cost is liable to be imposed upon Indra Kant Pandey.
49. Indra Kant Pandey is directed to pay cost of Rs.25000/- (Twenty Five Thousand only) to Rama Pati Mishra within a period of one month from today. In case, cost is not paid within the said period, the same shall be recovered as arrears of land revenue.
Dated: 17/12/2013 akverma