Allahabad High Court
State Of U.P. & Another vs Brijesh Yadav & Another on 20 April, 2017
Author: Dilip Gupta
Bench: Dilip Gupta, Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 39 Case :- SPECIAL APPEAL No. - 1602 of 2010 Appellant :- State Of U.P. & Another Respondent :- Brijesh Yadav & Another Counsel for Appellant :- SC & Ms. Meenakshi Singh Counsel for Respondent :- G.K. Singh Hon'ble Dilip Gupta,J.
Hon'ble Prabhat Chandra Tripathi,J.
(Delivered by Hon'ble Dilip Gupta, J.) The State of Uttar Pradesh and the District Inspector of Schools, Azamgarh have filed this Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 against the judgment dated 11 February 2005 of a learned Judge of this Court by which Writ Petition No. 1622 of 2001 that was filed by respondent No. 1-Brijesh Yadav for quashing the order dated 4 November 2000 passed by the District Inspector of Schools, Azamgarh has been allowed and a direction has been issued to the District Inspector of Schools to grant approval to the appointment of Brijesh Yadav within two months. The said order was passed on the representation filed by Brijesh Yadav (hereinafter referred to as the 'petitioner') for granting approval to his appointment as Assistant Teacher in the L.T. Grade.
The Appeal is accompanied by an application seeking Leave to Appeal by the State of Uttar Pradesh as it was not impleaded as defendant in the writ petition. The State of Uttar Pradesh should have been impleaded as a respondent as any direction granting approval to the appointment would necessarily mean payment of salary. The application filed by the State seeking Leave to Appeal is, therefore, allowed.
The Appeal reveals that Sri Mathura Inter College, Naharpur, Azamgarh1 is a College recognized under the provisions of the Uttar Pradesh Intermediate Education Act, 19212. The provisions of the Payment of Salaries Act, 19713 would, therefore, be applicable. The appointment of teachers is governed by The Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 19824, and the Removal of Difficulties Order that have been issued from time to time under Section 33 of the 1982 Act.
Sri Ram Jit Ram, who was a Lecturer in the College, retired on 30 June 1997. A substantive vacancy, therefore, arose on the post of Lecturer in the College on 1 July 1997. The management sent the papers for promotion of Ram Dawar Ram, who was an Assistant Teacher in the L.T. Grade, to the post of a Lecturer under the 50% quota to the District Inspector of Schools which were received on 6 July 1997. The papers were then forwarded by the District Inspector of Schools to the Commission on 26 July 1997. However, by order dated 3 January 1998, the District Inspector of Schools granted approval to the ad hoc promotion of Ram Dawar Ram on the post of Lecturer. A short term vacancy, therefore, arose on the post of Assistant Teacher in the L.T. Grade. The Management alleges to have issued an advertisement on the notice board of the College to fill up the post of Assistant Teacher on 10 June 1997. Applications were invited upto 29 June 1997. It is also alleged that the Selection Committee met on 29 June 1997 and recommended the name of the petitioner for appointment as an Assistant Teacher against the short term vacancy. The papers, with the appointment letter dated 9 July 1997, were sent by the Committee of Management to the District Inspector of Schools without signature on 29 August 1997. The District Inspector of Schools, however, by order dated 25 May 1999, refused to grant financial approval to the appointment of the petitioner stating that the Committee of Management of the College had no authority to make the appointment.
The order dated 25 May 1999 was assailed in Writ Petition No. 33560 of 1999. This petition was allowed by judgment dated 12 August 1999 holding that the Committee of Management could make an appointment against a short term vacancy. The matter was, therefore remitted to the District Inspector of Schools to pass a fresh order. The District Inspector of Schools again by order dated 4 November 2000 rejected the claim of the petitioner but this time for the reason that the appointment had been made in an arbitrary and whimsical manner by the Committee of Management without following the procedure prescribed.
It is this order dated 4 November 2000 that was assailed in the writ petition. The learned Judge set aside the order holding that :-
"From a perusal of the impugned order the approval has been rejected by the District Inspector of Schools on the ground that the appointment of the petitioner was made by the committee of management in violation of the rules. No details have been given specifying which provision of the rules have been violated the committee of management. The impugned order is totally vague and speaks itself of the fact that the authority has not applied its mind. Consequently, the impugned order cannot be sustained."
Accordingly, the following directions were issued :-
"In the result, the writ petition is allowed. The impugned order dated 4.11.2000 is quashed and a writ of mandamus is issued to the District Inspector of Schools, Azamgarh to grant approval to the appointment of the petitioner on the post in which he is working within two months from the date of production of the certified copy of this order before the respondent No.2."
Ms. Meenakshi Singh, learned Standing Counsel appearing for the State has contended that a detailed counter affidavit had been filed by the State in the writ petition to explain why it was not possible for the District Inspector of Schools to grant approval to the appointment of the petitioner against the short term vacancy but they have not been considered by the learned Judge. Learned Standing Counsel has referred to the averments made in the counter affidavit and pointed out that a vacancy had arisen on the post of Lecturer on 1 July 1997 when Ram Jeet Ram retired on 30 June 1997. The District Inspector of Schools granted approval to the ad hoc promotion of Ram Dawar Ram who had been working as an Assistant Teacher in the L.T. Grade only on 3 January 1998 but even before that date, the Committee of Management claimed to have issued an advertisement on the notice board of the College on 10 June 1997 for appointment of an Assistant Teacher and papers relating to the appointment of the petitioner on 9 July 1997 were forwarded by the Committee of Management to the District Inspector of Schools only on 29 August 1997 and that too without signatures. In fact, it has been submitted by the learned Standing Counsel that the Committee of Management resolved to grant ad hoc promotion to the Assistant Teacher Ram Dawar Yadav only on 15 June 1997 and papers were sent to the District Inspector of Schools on 30 October 1997, after which approval was given by the District Inspector of Schools to the ad hoc promotion on 3 January 1998. The contention of learned Standing Counsel is that the appointment of the petitioner on the post of Assistant Teacher in the L.T. Grade allegedly against a short term vacancy is dehors the provisions of The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order 19815 and does not confer any right on the petitioner. In support of this contention, learned Standing Counsel has placed reliance upon the decisions of the Supreme Court in Prabhat Kumar Sharma and Others v. State of U.P. and Others6 and Shesh Mani Shukla v. District Inspector of Schools, Deoria and Others7 and upon the Full Bench decision of this Court in Km. Radha Raizada and Others v. Committee of Management, Vidyawati Darbari Girls Inter College and Others8.
Though the list has been revised, but no one has appeared on behalf of the petitioner.
We have considered the submissions advanced by the learned Standing Counsel.
The facts, as they emerge from the counter affidavit filed by the State in the writ petition, clearly demonstrate that a vacancy on the post of Lecturer in the College had arisen on 1 July 1997 when Sri Ram Jeet Ram retired on 30 June 1997. The Committee of Management proposed to grant ad hoc promotion to Ram Dawar Ram who was working as an Assistant Teacher in the L.T. Grade on 15 June 1997 and sent the papers to the District Inspector of Schools on 30 October 1997. The District Inspector of Schools granted approval to the ad hoc promotion of Ram Dawar Ram on 3 January 1998. Even prior to this date, the Committee of Management also alleges to have issued an advertisement on the notice board of the College on 10 June 1997 for appointment on the post of Assistant Teacher in the L.T. Grade. The candidates were required to submit their applications by 29 June 1997. It is stated that a meeting of the Committee of Management was held on 29 June 1997 for making appointment on this vacancy. The counter affidavit filed by the District Inspector of Schools in the writ petition further mentions that it was only on 24 August 1997 that unsigned papers were sent by the Committee of Management to the District Inspector of Schools for granting approval to the appointment of the petitioner on 9 July 1997.
The dispute in this Special Appeal is about the ad hoc appointment of the writ petitioner against a short term vacancy on the post of Assistant Teacher that could have arisen on account of ad hoc promotion of Ram Dawar Ram from the post of Assistant Teacher to the post of Lecturer. Even if it is taken that the Committee of Management had resolved on 15 June 1997 to grant ad hoc promotion to Ram Dawar Ram from the post of Assistant Teacher to the post of Lecturer, a short term vacancy on the post of Assistant Teacher could have arisen only on 3 January 1998 when the District Inspector of Schools granted approval to this ad hoc promotion. According to the writ petitioner, he was appointed as an ad hoc Assistant Teacher against the said short term vacancy on 9 July1997, even prior to the date when the short term vacancy arose.
Section 18 of the U.P. Secondary Education Services Commission and Selection Board Act, 19829 at the relevant time dealt with ad hoc appointments of teachers in the Institutions till the availability of a selected candidate by the Commission. Section 18 of the 1982 Act as it stood prior to its substitution by UP Act No. 24 of 1992 is reproduced below:
"Section 18:- (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and
(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or
(b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.
(2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'Board' for the expression "Commission".
(3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely-
(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post;
(b) when the period of one month referred to in sub-section (4) of section 11 expires;
(c) thirtieth day of June following the date of such ad hoc appointment."
Since the Commission had not been established when the Act was enforced, The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order 198110 was issued by the State Government under Section 33 of the Act on 31 July 1981. It provided that the Management of an Institution could appoint by promotion or by direct recruitment a teacher purely on ad hoc basis in accordance with the provisions of the Order in the case of a substantive vacancy caused by death, retirement, promotion or otherwise. Soon thereafter, the Second Order was issued on 11 September 1981. It provided for ad hoc appointment against a short term vacancy on the post of a teacher caused by grant of leave or on account of suspension duly approved by the District Inspector of Schools or otherwise. Thus, the provisions of Section 18 of the Act, the First Order and the Second Order independently empowered the Management of the Institution to make ad hoc appointments of teachers in the Institution. Section 18, at the relevant time, did not provide the method and manner of such appointment, while the First Order and the Second Order provided a procedure for making ad hoc appointments of teachers.
A short term vacancy can be filled up only in accordance with the procedure contemplated under the provisions of the Second Order. Paragraph 2, which deals with the procedure for filling up short term vacancies, is reproduced below :-
"2. Procedure for filling up short-term vacancies:-
1. A short term vacancy in the post of a teacher, caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the institution, by promotion of the permanent senior most teacher of the institution, in the next lower grade. The management shall immediately inform the District Inspector of Schools of such promotion alongwith the particulars of the teacher so promoted.
2. Where any vacancy, referred to in clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in clause (3).
3. (i) The Management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution alongwith the particulars given in Appendix 'B' to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-4993/ XV-7-1(79)-1981, dated July 31, 1982, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of institution.
(ii) The names and particulars of the candidate selected and also other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.
(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.
(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.
Explanation -For the purpose of this paragraph:-
(i) the expression 'senior-most teacher' means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained Graduate (L.T.) grade, or Trained under-graduate (C.T.) grade or J.T.C. or B.T.C. Grade, as the case may be;
(ii) in relation to institution imparting instructions to women, the expression 'District Inspector of Schools' shall mean the 'Regional Inspectress of Girls Schools';
(iii) 'short term vacancy' means a vacancy which is not substantive and is of a limited duration."
A Full Bench of this Court in Radha Raizada held that ad hoc appointments of teachers either under Section 18 of the Act or under the provisions of the First Order or the Second Order have to be made in the manner provided. The Full Bench also pointed out that the First Order dealt with ad hoc appointment either by promotion or direct recruitment only against a substantive vacancy which had been notified to the Commission and the Second Order dealt with short term vacancies which could arise on account of a teacher going on leave or on account of suspension pending disciplinary proceedings. The Full Bench also observed that by merely notifying the short term vacancy on the Notice Board contemplated under the Second Order did not give equal opportunity to all eligible candidates and would, therefore, not satisfy the requirements of Article 16 of the Constitution. The Full Bench, therefore, held that the procedure for notifying a short term vacancy under the Second Order should be the same as provided for under the First Order, namely that the Management after intimating the vacancy to the District Inspector of Schools, should also advertise such a short term vacancy in at least two newspapers having adequate circulation in the State. The observations of the Full Bench are as follows:-
"Neither Section 18 of the Principal Act nor the First Removal of Difficulties Order envisaged for ad hoc appointment against the short term vacancy. As earlier noticed, Section 18 and the First Removal of Difficulties Order provided for ad hoc appointment either by promotion or by direct recruitment only against substantive vacancy which has been notified to the Commission. Since short term vacancy is not a substantive vacancy, the State Government by notification dated 7-9-1981 came out with a Second Removal of Difficulties Order providing for procedure for filling the short term vacancies. The short term vacancy as envisaged in the Second Removal of Difficulties Order is which arises on account of teachers going on leave granted to him or on account of suspension of a teacher pending disciplinary proceedings which is duly approved by the District Inspector of Schools. The power to appoint teachers either by promotion or by direct recruitment under the Second Removal of Difficulties Order is open only against short term vacancies and not against substantive vacancy. Paragraph 2 of the Second Removal of Difficulties Order provides that if short term vacancy in the post of teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise arises the same is required to be filled by the management of the institution by promotion of permanent senior most teacher of the institution from lower grade. The Management is further required to immediately inform the District Inspector of Schools of such promotion alongwith particulars of the teachers who is promoted. Thus, if the short term vacancy arises the said vacancy has to be filled in by the promotion from amongst the permanent senior most teacher of the institution in the next lower grade and such promotion has to be intimated to the District Inspector of Schools. Paragraph 2 of the Order further provides that the short term vacancy, if cannot be filled by promotion due to non-availability of a teacher in the lower grade possessing the prescribed minimum qualification, the same may be filled by the direct recruitment in the manner laid down in sub-paragraph (3) of Paragraph 2 of the order which provides that the management shall intimate the vacancy to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution requiring the candidate to apply to the Manager of the institution alongwith particulars. The advertisement of short term vacancy on the notice board of the institution according to me, is in fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether any short term vacancy has been advertised. Since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of Article 16(1) of the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The provision contained in sub-paragraph (3) of Paragraph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution, does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. Such kind of notice is an eye wash for the requirement of Article 16 of the Constitution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution and may process the application of its own candidate for the appointment against the short term vacancy. I am, therefore, of the view that the procedure for notifying the short term vacancy should be the same as it is for ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two News Papers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange."
(emphasis supplied) It is clear from the documents enclosed with the writ petition that the vacancy was not intimated to the District Inspector of Schools and that the advertisement was published only on the Notice Board of the College on 10 June 1997. There is nothing on record to substantiate that the Management had issued an advertisement in two News Papers having adequate circulation in the State, though the appointment was made much after the decision of the Full Bench on 12 July 1994. Thus, neither a short term vacancy had arisen on 9 July 1997, on which date the writ petitioner claims to have been appointed on ad hoc basis nor the procedure contemplated in paragraph 2 of the Second Order was followed. This apart, it also transpires from the records that though the advertisement was issued on the notice board of the College on 10 June 1997 much prior to the occurrence of the vacancy and the appointment order was also issued on 9 July 1997 but still the papers were forwarded by the Committee of Management to the District Inspector of Schools only on 29 August 1997. The provisions of the Second Order have been blatantly violated by the Committee of Management of the College.
The Full Bench of this Court in Radha Raizada, as noted above, though in respect of an ad hoc appointment made under the First Order, held that any ad hoc appointment made without following the procedure laid down in the First Order would be void and would not confer any right on such appointees. The Supreme Court also had an occasion to examine the validity of ad hoc appointments which were not made in accordance with the procedure provided for under paragraph 5 of the First Order in the case of Prabhat Kumar Sharma. The Supreme Court held that any ad hoc appointment not made in accordance with paragraph 5 of the First Order would be illegal and void and would not confer any right on the appointee. The observations are as follows:-
"It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the management to any post in an aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981, Order."
In Shesh Mani Shukla, the Supreme Court reiterated what was earlier observed in Prabhat Kumar Sharma and the observations are:-
"Both the learned Single Judge as also the Division Bench have found that the institution has not complied with the provisions of the 1981 Act as amended as also Para 5 of the 1981 Order. If the appointment of the appellant was not valid, the question of granting any approval thereto did not arise. Action, on the part of the Committee of the Management to hold selection, being not consistent with Para 5 of the Order has rightly been held to be wholly unsustainable."
The legal position clarified by the Supreme Court in regard to the First Order would equally apply for the Second Order. Thus, the appointment of the writ petitioner as ad hoc Assistant Teacher was void ab-initio and would not confer any right on him to claim salary.
It can, however, be contended by the writ petitioner that since he had continued to work for a long time, the Court should take a sympathetic view in the matter.
A similar submission was made before the High Court in the writ petition filed by Shesh Mani Shukla but it was not accepted. The decision is reported in (2004) 3 UPLBEC 256011. While rejecting the aforesaid contention, this Court held as follows :-
"In my opinion, the petitioner is not entitled to a relief from this Court merely on the ground that an interim order had been passed in his favour under which he continued to receive salary. The petitioner has to give way to the candidate who had been appointed in accordance with the procedure then prescribed for making an ad hoc appointment. In this context it may be useful to reproduce a passage from the judgment of the Supreme Court in the case of State of Madhya Pradesh and another Vs. Dharam Bir reported in JT 1998 (4) SC 363 wherein it has been observed as follows:-
"The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the Courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the Courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad-hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of employment for which he has striven and had ultimately cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification."
The Supreme Court in the case of Kishorilal Charmakar and another Vs. District Education Officer and another reported in (1998) 9, SCC 395 examined the termination of persons who had been appointed under a bona fide mistake by considering them as Scheduled Tribes candidates and the mistake had not occurred on their account. It was submitted on their behalf that they had worked for 10 years as teachers under the interim orders granted by the Court in their favour and since they were not responsible for the mistake they should be allowed to continue. The Court rejected this contention holding that this alone could not entitle them to retain the undeserved benefit which had accrued to them. In yet another case the Supreme Court in the matter of State of Rajasthan Vs. Hitendra Kumar Bhatt (1997) 6 SCC 574 examined the effect of an interim order on the dismissal of the petition. In the said case the respondent was not called for an interview since he did not possess the technical qualification. However, pursuant to the interim order passed by the High Court requiring the appellant to call him for interview he was interviewed and his name was included in the list of selected candidates. He was also appointed on a provisional basis and was also subsequently confirmed. The writ petition was ultimately dismissed by the High Court holding that on the cut of date, he did not possess the requisite qualification. It was submitted by the respondent before the Supreme Court that since he had been continued in service and had also been confirmed, the Court should not disturb his appointment and his case should be considered sympathetically. The Supreme Court observed that the appellants had taken the correct stand right from the beginning and the respondent's application was not considered and he was not called for interview. It was only on account of the interim orders, which were obtained by the respondent that he was given an appointment and continued. He was aware that his appointment was subject to the out come of the petition. As such a sympathetic view could not be taken.
In view of the aforesaid facts and in view of the principles laid down by the Supreme Court in the aforesaid cases I am unable to accept the argument put forth by the learned counsel for the petitioner that even if it is held that the appointment of the petitioner was made in violation of the provisions of the First Removal of Difficulties Order, 1981, the Court should take a sympathetic view and allow the petition since he had received salary on the basis of the interim order which he has enjoyed for all these 11 years."
The Special Appeal filed against the aforesaid decision was dismissed by a Division Bench of the High Court. These two judgements were challenged before the Supreme Court. The Supreme Court dismissed the Appeal and the relevant observations made by the Supreme Court in Shesh Mani Shukla are as follows :-
"Both the learned Single Judge as also the Division Bench have found that the institution has not complied with the provisions of the 1981 Act as amended as also para 5 of the 1981 order. If the appointment of the appellant was not valid, the question of granting any approval thereto did not arise. Action, on the part of the Committee of the Management to hold selection, being not consistent with para 5 of the Order has rightly been held to be wholly unsustainable. It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab-initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a correspondent legal duty in the State. {See Food Corporation of India & ors. V. Ashish Kumar Ganguly & ors. [2009 (8) Scale 218]}. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. {See State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors. [JT 2007 (12) SC 219: (2008) 1 SCC 456]}"
Thus, mere working for a substantial period of time, would not confer a right on the writ petitioner to contend at the time of final hearing that relief should be granted on the basis of equity. The appointment of the writ petitioner was void ab-initio. The writ petitioner was, therefore, not entitled to any relief.
Though it is correct that the order passed by the District Inspector of Schools does not refer to any particular provision, but in the counter affidavit filed by the State detailed reasons had been given and reference was also made to the Second Order. These reasons have not been considered by the learned Judge and merely because the order passed by the District Inspector of Schools did not refer to any Rule, a direction was issued for granting approval to the appointment of the petitioner. It is, therefore, not possible to sustain the order passed by the learned Judge as the appointment of the writ petitioner against the short term vacancy was not made in accordance with the provisions of the Second Order. It is, accordingly, set aside.
The Special Appeal, therefore, deserves to be allowed and is allowed. The writ petition would in such circumstances stand dismissed.
Order Date :- 20.4.2017 Akram (Dilip Gupta,J.) (Prabhat Chandra Tripathi,J.)