Allahabad High Court
Km. Indira Sharma D/O Sri Udai Veer ... vs Deputy Director Of Education ... on 14 May, 2004
Author: R.K. Agrawal
Bench: R.K. Agrawal
JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Km. Indira Sharma, seeks a writ, order or direction in the nature of certiorari quashing the order dated 4th September 1998 passed by the Joint Director of Education, I Region, Meerut, respondent No. 2, filed as Annexure 7 to the writ petition. She also seeks a writ of mandamus directing the respondents to release the payment of salary bills of the petitioner from 1st January 1991 (wrongly mentioned as 1996 in prayer) till date and to approve the services of the petitioner in pursuance of the order dated 21th May 1996 passed in Civil Misc. Writ Petition No. 24300 of 1997 and the order dated 28th August 1997 passed by this Court in Civil Misc. Writ Petition No. 26938 of 1997 and 6thApriI 1998 passed by this Court in Contempt Petition No. 432 of 1997.
2. Briefly stated, the facts giving rise to the present, writ petition are as follows:-
In the district of Ghaziabad, there is an institution known as Manohari Vidya. Mandir Higher Secondary School, situate at Hapur Road. It is a recognised institution and is governed by the provisions of the U.P. Intermediate Education Act, 1921 and other statutory enactments. According to the petitioner, she is working as Assistant Teacher in the aforementioned institution from 1st January 1991. Up to the year 1986, the institution was a Junior High School and it was upgraded to High School. The teachers and other employees of the institution prior to its upgradation to High School, were receiving salary under the provisions of the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act 1978. After its upgradation, the salaries of teachers and employees of the institution was stopped as it was not brought within the purview of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. However, the payment of salary was being released under the orders passed by this Court in the writ petition filed by the teachers and employees of the said institution. The institution has since been brought within the purview of the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971. According to the petitioner, one Smt. Asha Sharma who was an Assistant Teacher in the institution, went on leave without pay on 1st November 1990. The petitioner was appointed as Assistant Teacher on lst January 1991 on the leave vacancy thus caused. Later on Smt. Asha Sharma resigned on 25th June 1993. The short term vacancy, thus, became a substantive vacancy. The District Inspector of Schools had stopped the payment of salary to the petitioner on the ground that that the Committee of Management had no power to make appointment of the petitioner against a substantive vacancy. As the petitioner was not being paid her salary, she approached this Court by filing Civil Misc. Writ Petition No. 24300 of 1994. By means of an interim order, the respondents were directed to pay the salary to the petitioner or to show cause. The respondents showed cause by filing a counter affidavit. This Court heard the matter finally and vide judgment and order dated 21st May 1996, while allowing the writ petition, directed the respondents to pass appropriate order for payment of salary. This Court relying upon an earlier decision in the case of Meena Singh v. District Inspector of Schools, Jaunpur and Ors., (1994) 3 UPLBEC 1652, held that if the short term vacancy is converted into the substantive vacancy, till the candidate selected by the Commission turns up to join the post, the incumbent who has already worked against the short term vacancy, is entitled to continue until the duly selected candidate by the Commission is appointed. The operative portion of the order passed by this Court is reproduced below:-
"In this view of the matter, the District Inspector of Schools is directed to pass appropriate orders for payment of salary of the petitioner with effect from the date it has not been paid."
3. The aforesaid judgment and order dated 21st May 1996 became final between the parties, a fact which is not in dispute.
4. The petitioner filed a copy of the order dated 21st May 1996 before the District Inspector of Schools, Ghaziabad and requested him that the salary be paid. According to the petitioner, the District Inspector of Schools, Ghaziabad, prepared the salary bill on 19th August 1996 and the same was sent to the Deputy Director of Education, I Region, Meerut, for payment The salary bill was received by the Deputy Director of Education on 20th August 1996.
5. To set the record straight, the petitioner also approached this Court in the year 1997 by filing Civil Misc. Writ Petition No. 26938 of 1997 seeking a writ of mandamus directing the respondents to release the fund for payment of the salary from 1st January 1991 till date. This Court, vide judgment and order dated 28th August 1997. while disposing of the writ petition, held that there does not seem to be any reason not to comply with the order of this Court unless against the order passed in the writ petition, referred to above, any special appeal has been filed an stay odder has been passed.
6. According to. the petitioner, the Joint Director of Education, I Region, Meerut, respondent No. 2, called her and orally asked the petitioner to pay 20% in advance of the amount of the salary bill otherwise the salary bill would not be passed. The petitioner did not oblige and instead the petitioner approached this Court by filing contempt petition which was numbered as 432 of 1997. This Court, vide judgment and order dated 6th May 1998, disposed of the contempt petition with the following direction :-
"In view of the above facts and circumstances, I finally dispose of the contempt petition with the direction to the Deputy Director of Education (F). Office of Director of Education, Allahabad to pass the bills, if they are still pending in his office, within a period of one month from the date of production of a certified copy of this order."
7. Pursuant to the direction given by this Court in the contempt petition, the petitioner approached the Deputy Director of Education by way of a representation dated 18th May 1998. The Joint Director of Education sent the salary bill of the petitioner to the Director of Education (Finance) for necessary action. Queries were raised vide letter dated 4th July 1998, which was duly replied. However, the Joint Director of Education, vide order dated 4th September 1998, disapproved the services of the petitioner and refused to pay her salary. The order dated 4th September 1998 is under challenge in the present writ petition.
8. I have heard Sri R.K. Sharma, the learned counsel for the petitioner, and the learned Standing Counsel who represents the respondents.
9. The learned counsel for the petitioner submitted that the petitioner was appointed in short term vacancy on account of Smt. Asha Sharma going on leave. She had not been paid salary since 1st January 1991 and was forced to approach this Court by filing Civil Misc. Writ Petition No. 24300 of 1994, which was disposed of vide judgment and order dated 21st May 1996. This Court, in the aforesaid writ petition, had held that the petitioner is entitled to continue till a duly selected candidate joins. However, the District Inspector of Schools was directed to pass appropriate order for payment of salary from the date it has not been paid. This Court has, thus, held the continuance of the petitioner as legal and justified and. therefore, the petitioner is entitled for the salary. In subsequent Civil Misc. Writ Petition No. 26938 of 1997, decided on 28th August 1997, this Court has also held that there does not seem any reason for not complying with the order of this Court unless against the order passed in the writ petition any special appeal has been filed or stay order has been passed and since neither any special appeal has been filed nor there is any interim order staying the operation of the order dated 21.5.1996, the petitioner is entitled for the salary for the period for which she had worked, He further submitted that this Court in the contempt petition filed by the petitioner had also directed the Deputy Director of Education (Finance) to pass the bills if they are Still pending in his office within the period of one month from the date of production of a certified copy of the order. He, thus, submitted that in view of the specific direction given by this Court, the action of the respondents in not paying the salary is illegal and unjustified and the petitioner is being harassed.
10. The learned Standing Counsel submitted that an application for review has been filed in Civil Misc. Writ Petition No. 24300 of 1994, which is still pending. He further submitted that vide order dated 4th September 1998, the respondent No. 2 has found the appointment of the, petitioner as illegal and, therefore, she is not entitled for any salary. According to him, the appointment of the petitioner was not done after following the prescribed procedure and, therefore, she is not entitled for salary from the State Government.
11. Sri R.K. Sharma, learned counsel, submitted that no application for review had been filed and it is only to mislead this Court that such a plea is being taken. So far as the appointment of the petitioner is concerned, he submitted that this Court had already held that the petitioner is entitled to continue till a duly selected candidates joins and, therefore, it is now not open to the respondents to take this plea.
12. Having heard the learned counsel for the parties, 1 find that Civil Misc. Application No. 92385 of 2001 in Civil Misc. Writ Petition No. 24300 of 1994 was presented in the Registry on 16th November 2001. Alongwith the said application, an affidavit of P.K. Singh, L.D.A. in the office of the Chief Standing Counsel, High Court, Allahabad has also been filed in which in paragraph 2 it has been stated that a recall application was prepared and the affidavit in suport of the recall application was sworn and verified by him on 26th August 1998. The application for recall was filed in the office of the High Court on 12th November 1998. The copy of the recall application and the affidavit filed in support of the recall application has been annexed as Annexure 1 to the aforementioned affidavit. This fact has been seriously disputed by the petitioner in her counter affidavit and reiterated by P.K. Singh in the rejoinder affidavit. A report was called for from the Registry as to whether any application has been filed in Civil Misc. Writ Petition No. 24300 of 1994, as alleged by the Standing Counsel, or not. The Joint Registrar (Listing), vide report dated 7th February 2002, had submitted that no review application has been filed on 12th November 1998 or thereafter up to December 1998 in the Registry. The report has been placed in the file of Civil Misc. Writ Petition No. 6455 of 1999. There is no reason to disbelieve the report dated 7th February 2002 submitted by the Joint Registrar (Listing) as it is based upon the report obtained from the concerned section and also from the Bench Secretary of the Registrar General where such applications are filed. Thus, the plea taken by the State that an application for recall/review was filed on 12th November 1998 cannot be believed.
13. It may be mentioned here that the petitioner had filed another contempt petition being Contempt Petition No. 2685 of 1998, which was dismissed vide judgment and order dated 4th November 1999 on the ground that the petitioner had filed Civil Misc. Writ Petition No. 38023 of 1998 for quashing the order dated 4th September 1998 passed by the Joint Director of Education, Meerat, which she got dismissed as withdrawn with a liberty to file a fresh writ petition and a fresh writ petition till then had not been filed. Even in the said contempt proceedings, the respondents did not take a plea that they had filed an application for recall/review of the judgment and order dated 21st May 1996 passed by this Court in Civil Misc. Writ Petition No. 24300 of 1994. Thus, the plea taken by the respondents that they had filed an application for review/recall is wholly incorrect.
14. An application for recall of the order dated 4th November 1999 has been filed by the petitioner, which has been numbered as Civil Misc. Recall, Application No. 80761 of 1999 in which this Court, vide orders dated 24th February 2000 had directed that the application be kept pending till the decision of Civil Misc. Writ Petition No. 6455 of 1999.
15. The learned Standing Counsel, however, submitted that as the appointment of the petitioner was wholly illegal and had been made without following the prescribed procedure, this Court can suo motu correct its own mistake. He relied upon a decision of the Hon'ble Supreme Court in the case of Common Cause v. Union of India, AIR 1999 SC 2979, wherein the Apex Court has held that the powers of the Hon'ble Supreme Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by legal constraints and if the Court had committed a mistake, it had the plenary power to correct its own mistake. It may be mentioned here that in Civil Misc. Writ Petition No. 24300 of 1994 which was decided after the exchange of the affidavits, no such plea was raised by the respondents that the appointment of the petitioner has not been made in accordance with law and, thus, the State is estopped from taking such a plea at this stage while seeking recall/review of judgment and order dated 21st May 1996. I find that this Court had not committed any mistake while deciding the aforementioned writ petition and, thus, there is no question of correcting any mistake under the plenary powers, as held by the Apex Court in the aforementioned decision. The Civil Misc. Application No. 92385 of 2001 has no merit and is hereby rejected.
16. The learned Standing Counsel relied upon a Full Bench decision of this Court in the case of Smt. Pramila Mishra v. Deputy Director of Education, Jhansi Division, Jhansi and Ors., 1997 (2) ESC 1289 and submitted that the petitioner ceased to work on the post of the Assistant Teacher on 25th June ] 993 when Smt. Asha Sharma on whose leave vacancy the petitioner was working resigned, i.e., the vacancy stood converted into a substantive vacancy. It may be mentioned here that a Division Bench of this Court in the case of Raghuvendra Babu Mishra v. District Inspector of Schools, Etah and Ors., 2002 (3) ESC 69, has considered the aforesaid decision of the Full Bench and has held as follows:-
"9. In the case of Smt. Pramila Mishra (supra) the Full Bench of this Court had held that --
"A teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy/suspension vacancy) which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, rules and orders (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, right to be considered alongwith other eligible candidate for ad hoc appointment till the substantive vacancy if he possesses the requisite qualifications."
10. The decision of the Full Bench in the case of Smt. Pramila Mishra (supra) was considered subsequently by a Division Bench in the case of Raj Kumar Verma (supra) wherein the Division Bench has held as follows:-
"The question for consideration before the Full Bench in the case of Pramila Mishra (supra) was whether a teacher appointed on ad hoc basis in a short term vacancy, such as a vacancy caused due to leave, was entitled; as of right : to continue on the said post even after the short term vacancy has been converted into a permanent vacancy due to death, resignation, retirement or termination of the permanent incumbent. The Full Bench noticed that the answer to the question would depend on interpretation of Section 33-B of the U.P. Secondary Education Service Commission and Selection Boards Act, 1982 (U.P.) Act. No. 15 of 1982) and its interaction with the provisions of the U.P. Secondary, Education Service Commission (Removal of Difficulties) (Order), 1981. The Full Bench held as under:-
"In the case of ad hoc appointment in a short term vacancy paragraph - 3 of the Second Order specifically lays down that the appointment will come to an end if the short term vacancy otherwise ceases to exist. It follows, therefore, that when a vacancy caused due to grant of leave to or suspension of the permanent incumbent becomes a substantive vacancy on account of. his death, resignation or termination or removal from service, the short term vacancy ceased to exist and a substantive vacancy is created in its place. On a perusal of the relevant provisions and anxious consideration to the matter, we do not find any provision which directly or even indirectly vests a right in a person appointed as an ad hoc teacher in a short term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place. What we want to stress and which is clear to us is that he cannot claim as a matter of right that he is entitled to continue the post till the candidate selected by the commission/board joins even in the short terra vacancy has ceased and a substantive vacancy on the post of teacher has been created in its place."
Paragraph 3 of the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981, as amended by Para - 3 of the U.P. Secondary Education Service Commissioner (Removal of Difficulties) (Third) Order, 1982 provides that every appointment of an ad hoc teacher under paragraph 2 shall cease to have effect (i) when the teacher, who was on leave or under suspension joins the post, or (ii) when the short term vacancy otherwise ceased to exist The Full Bench in support of its conclusion aforestated has placed reliance on the provisions contained in paragraph 3 of the Second Removal of the Difficulties Order, 1981 referred to above. The Full Bench, in support of its conclusion referred to above, also noticed the difference in the manner of appointments under the provisions in the following words:-
"A clear distinction has been maintained between substantive vacancy and short term vacancy of the post of teacher, The authority to make the appointment, the procedure to be followed in making the appointment and the considerations to be made in making the appointments in the two cases are distinct and different from each other."
The question herein is not whether a teacher appointed in a short term vacancy is entitled to continue as of right even after the vacancy is converted into a substantive vacancy. The question involved in the instant case is whether the appellants are entitled to be considered for being given substantive: appointment. The right to be so considered for being given substantive appointment under Section 33-B accrues only upon conversion of short term vacancy into substantive vacancy as provided in sub-section (1) of Section 33-B. A teacher appointed in short terra vacancy on or before the date specified in Sub-clause (a)(i) of Sub-section (1) of Section 33-B if not found 'suitable' and 'eligible' to get substantive appointment would cease to hold the post on such date as the State Government may by order specify. That is how the provisions contained in section 33-B of U.P. Act No. 5 of 1982 'interact' with those of the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 in respect of teachers appointed prior to the date specified in the section. The question as to how do the two provisions "interact" has not been specifically answered by the Full Bench in Pramila Mishra's case (supra). In our opinion the right of a teacher appointed in a short term vacancy on or before the date specified in the Section 33-B(l) accrues only upon the short term vacancy being converted into a substantive vacancy and teacher appointed in short terra vacancy on or before the specified dates, who is not found 'suitable' and 'eligible' for substantive appointment shall cease to hold the appointment on such date as the State Government may by order specify and not on the date the short term vacancy came to be converted into substantive vacancy. The question in our considered opinion, needs to be examined by the duly constituted selection committee comprehended by Sub-section (3) of Section 33-B as the appellants were concededly appointed in Certificate of Teaching Grade before the specified date namely May 13, 1989. Whether they fulfil other conditions of being given substantive appointment is a question which is to be decided by the Selection Committee."
11. The Division Bench decision in the case of Raj Kumar Verma was subsequently followed by another Division Bench of this Court in the case of Smt. Shashi Saxena (Supra) and held that the services of a person does not come to an end automatically on the post being converted into substantive vacancy. In the case of Smt. Shashi Saxena (supra) the facts were that one Smt. Rama Dikshit, who was holding the substantive post of assistant teacher in L.T. grade was given ad hoc promotion against short term vacancy on the post of lecturer. Smt. Shashi Saxena was appointed on ad hoc basis in the short term vacancy caused by the ad hoc promotion of Smt. Rama Dikshit. Smt. Rama Dikshit retired from service. The substantive post held by Smt. Rama Dikshit i.e. the assistant teacher in L.T. grade fell vacant. On these facts after considering the provision of Section 33-B of the Act and the Second Removal of Difficulties Order, 1981 the Division Bench while allowing the special appeal held that the services of Smt. Shashi Saxena cannot be said to have come to an end automatically on the post of assistant teacher in L.T. grade on being converted into substantive vacancy on the retirement of Smt. Rama Dikshit."
17. The decision given in the case of Raj Kumar Verma (supra) and Smt. Shashi Saxena has been followed by this Court in Raghuvendra Babu Mishra (supra).
18. Respectfully following the principles laid down by this Court in the case of Smt. Shashi Saxena, the plea advanced by the learned Standing Counsel cannot be accepted.
19. So far as the order dated 4th September 1998 passed by the Joint Director of Education, Meerut is concerned, it may be mentioned here that in the aforesaid order it has been held that the District Inspector of Schools, vide order dated 24th June 1997, had approved the appointment of the petitioner with effect from 1st January 1991. She was appointed in place of Smt. Asha Sharma who had gone on leave without pay from 1st November 1990. Smt. Asha Sharma was getting salary from the State under the provisions of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The Joint Director of Education has held that the vacancy was a substantive vacancy and, therefore, the Committee of Management had no right to appoint the petitioner and, therefore, the, appointment cannot be approved. The Court without going into the question of demand of illegal gratification as it has been seriously disputed by the respondents in their counter affidavit, the Court is of the considered opinion that the whole approach of the Joint Director of Education is incorrect and is in. the teeth of the decision given by this Court in Civil Misc. Writ Petition No. 24300 of 1994, Contempt Petition No. 432 of 1997 and Civil Misc. Writ Petition No. 26938 of 1997. This Court has already held that the petitioner is entitled to continue till a regularly selected person from the Commission joins and had further directed for sanction of the salary bills. This Court had further held in Civil Misc. Writ Petition No. 26938 of 1997 that there is no reason not to pay salary unless the judgment passed in the earlier writ petition is challenged in special appeal or any interim order is obtained staying the operation of the order. Since no special appeal had been filed and the order had become final, it was incumbent upon the respondents to make payment of salary to the petitioner. From the record, I find that the State Government had already released the salary of the petitioner amounting to Rs. 217,020.00 vide bank draft No. 422648 dated 29th April 1999, of the State Bank of India, drawn in favour of the Zila Vidyalaya Nirikshak, Ghaziabad, as per Annexure RA1 filed alongwith the rejoinder affidavit of the petitioner, affirmed on 26th September 2000 and, thus, there was no justification for not releasing the salary to the petitioner.
20. In view of the foregoing discussions, the order dated 4th September 1998 passed by the Joint Director of Education cannot be sustained and is hereby set aside. The Joint Director of Education is directed to make payment of the arrears of the salary to the petitioner from 1st January 1991 till date within a period of 30 days from the date a certified copy of this order is filed before him, and further to continue to pay the current salary as and when it becomes due. In the result, the writ petition succeeds and is allowed.