Allahabad High Court
Ajay Kumar Singh vs The District Inspector Of Schools And ... on 10 January, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 28644 of 1992 Petitioner :- Ajay Kumar Singh Respondent :- The District Inspector of Schools and another Petitioner Counsel :- P.K. Singh Respondent Counsel :- SC Hon'ble Sudhir Agarwal,J.
1. Order dated 28.7.2009, having been recalled vide order of date passed on Recall Application, writ petition is restored to its original number.
2. Since this writ petition is pending from 1992, and the counter and rejoinder affidavits have been exchanged, as requested by leaned counsel for petitioner and learned Standing Counsel, I proceed to decide the matter finally after hearing arguments of learned counsels for parties.
3. Heard Sri Shashi Nandan, Senior Advocate, assisted by Sri P.K. Singh, Advocate, for petitioner and learned Standing Counsel for respondents.
4. Petitioner has sought a writ of mandamus commanding respondent no. 1 to pay him arrears of salary with effect from 8.8.1989 till date and to continue pay salary in future also.
5. The case of the petitioner is that there was a substantive vacancy in L.T. Grade in B.R. Inter College, Harraiya, District Basti (hereinafter referred to as 'College') wherein petitioner was offered appointment by the Committee of Management vide appointment letter dated 1.8.1989 pursuant whereto petitioner joined on 8.8.1989. During the pendency of this writ petition, this Court also passed an order on 20.12.1993 directing the District Inspector of Schools, Basti (hereinafter referred to as 'DIOS') to consider the question as to whether any vacancy, in fact, was available whereagainst the petitioner could have been appointed and to pass a reasoned order as the said question involves factual dispute. Pursuant thereto, DIOS passed a detailed order on 1.7.1994 holding that there were in all 29 posts in the College which all were filled in, and, there was no vacancy, therefore, the appointment of the petitioner itself was illegal. The Management sought to rely on a letter dated 6.7.1985 whereby one Triloki Nath, a Reserved Pool Teacher, was sought to be appointed by DIOS as Assistant Teacher (L.T. Grade), but since he did not join, the Management treated the said non joining as continuance of a vacancy and consequently has appointed the petitioner. The DIOS has recorded a finding after making enquiry into his official records that Sri Triloki Nath was sought to be appointed on the post of Assistant Teacher (L.T. Grade) and the word 'Zeev Vigyan' (Biology) were not mentioned in his appointment letter, but the Management has manipulated the said letter and added the word 'Zeev Vigyan' and treating the same as separate vacancy, has appointed the petitioner though in all there were 29 posts including 6 of Lecturer, 2 of L.T. Grade and 9 of C.T. Grade and all were already filled in.
6. Sri Shashi Nandan, learned Senior Advocate, appearing for petitioner, submitted that order of DIOS is patently erroneous inasmuch he has rejected claim of petitioner only on the ground that there was no sanctioned post lying vacant whereagainst petitioner could have been validly appointed, and, secondly that there appears to be some manipulation in the appointment letter of Reserved Pool Teacher so as to create a vacancy justifying appointment of petitioner and that appointment of petitioner is not valid inasmuch the procedure for making appointment was not followed. He contended that aforesaid reasons have no basis to stand for the reason that one Triloki Nath, Reserved Pool Teacher did not join institution, hence, a post was lying vacant whereagainst petitioner was appointed. This fact has been clearly mentioned by erstwhile DIOS in his order dated 12.2.1999 passed pursuant to this Court's order dated 14.9.1992 in the present writ petition. When inquired as to in what circumstances, DIOS had any occasion to pass another order in 1999, when he has already passed an order in 1994, learned counsel for petitioner stated that after filing of counter affidavit by the respondents annexing DIOS's order dated 1.7.1994, another order was passed by this Court directing DIOS to re-consider the matter and thereafter the said order was passed. However, no such order could be placed before this Court. The record of writ petition shows that this matter came up for admission on 4.8.1992 and this Court granted time to learned Standing counsel to file counter affidavit. The order passed by the Bench consisting of Hon'ble Anshuman Singh, J. and Hon'ble N.L. Ganguli, J. reads as under:
"List for admission after 4 weeks.
In the meantime, learned Standing Counsel may file counter affidavit."
7. Thereafter on 14.9.1992, since no counter affidavit was filed by State, this Court passed the following order:
"Inspite of the time granted, no counter affidavit has been filed till today.
Let an interim mandamus be issued directing the respondents to pay the salary to the petitioner within a period of six weeks or to show cause."
8. Pursuant thereto, a counter affidavit sworn by Sri R.G. Shukla, Camp Assistant to DIOS, Basti sworn on 23.1.1993 was filed. It was stated therein that there existed no vacancy of L.T. Grade Assistant Teacher in the institution; it is incorrect to State that any vacancy was notified to the Commission (U.P. Secondary Eduction Services Selection Board) constituted under U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as "Act, 1982") by the Committee of Management of College, the vacancy was never notified to the Commission; alleged selection by Committee of Management is void as the procedure under the Act and Rules was not followed and no prior approval of DIOS was obtained. It also stated that respondent no. 1, i.e., DIOS never granted any approval and the alleged approval dated 28.3.1991 filed as Annexure 6 to the writ petition is a forged and fictitious document. It further stated that petitioner is guilty of suppressing material facts and filing forged documents.
9. Petitioner filed a rejoinder affidavit sworn on 13.12.1993 stating that there existed a substantive vacancy of Assistant Teacher (L.T. Grade) which was duly informed to the Commission but the College did not receive any recommendation. The DIOS had issued a direction on 6.7.1985 to the Manager/ Principal of the College in purported compliance of U.P. Ordinance No. 12 of 1985 to the effect that one Triloki Nath was to be restituted on the post of L.T. Grade Teacher (Biology), but since Triloki Nath did not join, in the aforesaid vacancy petitioner was appointed. After hearing the parties and perusing the aforesaid pleadings, this Court passed following order on 20.12.1993:
"The petitioner alleges himself to be an L T Grade teacher. On 14.9.92, an interim mandamus was issued directing the District Inspector of Schools (for short DIOS) to make payment of salary of the petitioner, or, to show cause. The cause has been shown by filing a counter affidavit. Rejoinder affidavit has also been filed. In para 3 of the Counter Affidavit, it has been stated that there does not exist any post of L T Grade Teacher. The petitioner has tried to controvert this statement on the ground that the petitioner has been appointed against a vacancy in L T Grade and, no other inference can be drawn except that there did exist a vacancy. This is essentially a disputed question of fact.
Let the petitioner move an application before the DIOS, annexing all the relevant documents in support of his appointment, within a period of two weeks from today, and, the DIOS thereafter, will pass a reasoned order within six weeks after considering all the material available on record, as pointed out by the petitioner. The DIOS will also consider the documents contained in this writ petition, available in the office as well as in the Office of the institution. The petitioner will be informed of the fate of his representation so that when the case is next listed, this Court may know the outcome.
List this case after two months."
10. It is pursuant thereto i.e. order dated 20.12.1993, DIOS passed a detailed order dated 1.7.1994 and in para 3 thereof it was specifically stated that in the College, there existed total 29 posts in all cadres which are as under:
1.Principal - 1
2.Lectures - 6
3.L.T. Grade - 2
4.C.T. Grade - 9
5.Clerk - 3
6.Class 4th - 8
11. DIOS also stated that the alleged approval letter dated 28.3.1991 was not found in the DIOS Office and there was no mention of dispatch of such letter in the dispatch register in DIOS Office. It also says that despite demand, College Management or petitioner could not produce the original copy of letter except the photo copy. It is in these circumstances, he recorded a finding of fact that neither the appointment of petitioner was valid nor the petitioner was entitled for payment of salary under U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act, 1971"). The copy of the order dated 29.6.1994/1.7.1994 was placed before this Court along with supplementary affidavit sworn on 27.7.1994 filed by petitioner.
12. He (the petitioner) filed second supplementary affidavit sworn on 13.2.1995 stating that he possess the original copy of letter dated 28.3.1991 and may produce the same before the Court at the time of argument. However, no such document has been produced before me. There is no other order on record permitting the DIOS to pass any further order and no such order could be placed before this Court. It is in these circumstances, this Court fails to understand as to what was the occasion for DIOS to pass order dated 12.2.1999 which has been placed on record along with supplementary affidavit dated 23.9.2012. Apparently this order dated 12.2.1999 smacks of lack of bona fide and collusion of petitioner and the DIOS holding office in 1999.
13. Learned counsel for petitioner stated that he was permitted to file a supplementary affidavit giving the facts whether payment of salary has been made continuously despite dismissal of writ petition or not, and, it is pursuant thereto, he prepared supplementary affidavit sworn on 23.9.2012 and it was served upon learned Standing Counsel on 9.10.2012.
14. It is also interesting to note that in this order dated 12.2.1999, there is no discussion of any fact by DIOS and in a very cursory manner, he has simply passed an order drawing inference that financial approval should be granted and petitioner should be paid salary from the date of issuance of order dated 12.2.1999. Moreover he posses no power of review so as to nullify earlier order dated 1.7.1994 passed by the then DIOS.
15. Be that as it may, the fact remains that order passed by DIOS pursuant to this Court's order dated 20.12.1993, i.e., 1.7.1994 has not been assailed by the petitioner before this Court. In absence of any relief sought for quashing of an order, there is no occasion for this Court to look into its correctness and to set aside it. In the absence of challenge to the said order the High Court cannot quash the same and without quashing the same the effect of the said order cannot be ignored so as to grant relief as sought by the petitioner in the case in hand. In P. Chitharanja Menon and others Vs. A. Balakrishnan and others, AIR 1977 SC 1720 the Apex Court held that in absence of challenge to the basic order subsequent consequential order cannot be challenged. Similarly in Roshan Lal and others Vs. International Airport Authority of India and others, AIR 1981 SC 597 it was held that unless basic order is challenged the consequential orders neither can be challenged nor be examined by the Court. This Court has also followed the above law of the Apex Court in Gaon Shiksha Samiti, Auraiya and another Vs. State of U.P. and others, 2003(3) AWC 2466.
16. In order to do complete justice with the matter, I permitted learned counsel for petitioner to address this Court to demonstrate that his appointment was made validly for the reason that a writ of mandamus for payment of salary can be issued only when petitioner seeking writ of mandamus can demonstrate to the Court that his appointment has been made validly and, therefore, he has a right to claim salary from State Exchequer and respondents are under an obligation, statutory or otherwise, to pay him salary.
17. In order to claim salary, an Assistant Teacher claiming his appointment in a secondary educational institution has to demonstrate:
(a) there existed a vacancy against a sanctioned post in which he could have been appointed, and,
(b) procedure prescribed for valid appointment on the sanctioned post has been strictly observed and followed.
18. In the present case, DIOS has categorically stated that there did not exist any vacancy on a sanctioned post of Teacher whereagainst petitioner could have been appointed. In all there were 29 posts of teaching and non-teaching staff and all 29 posts were duly occupied by teaching and non-teaching staff duly approved by DIOS and getting salary. In fact from Annexures-1 and 2 to Supplementary Affidavit sworn on 27.7.1994, it appears that DIOS has recorded a finding that there were 11 post of LT Grade and CT grade in all, while the Manager of College claimed that in total sanctioned post of CT and LT Grades were 12. In para 4 and 5 of letter submitted by Manager to the DIOS (SA-2 to the aforesaid supplementary affidavit), the Manager claimed that the appointment of Ajay Kumar Singh was made on the post of Assistant Teacher (L.T. Grade) created vide DIOS's letter dated 6.7.1985. However, from own averments made by petitioner himself in para 4 of rejoinder affidavit, the DIOS's letter dated 6.7.1985 was for restitution of one Triloki Nath, alleged Reserved Pool Teacher on the post of Assistant Teacher (L.T. Grade) and he did not refer to any creation of post. Para 4 of rejoinder affidavit reads as under:
"That the contents of paragraphs nos. 3, 4, 5 and 6 of the counter affidavit are absolutely false and incorrect hence denied. In reply thereto it is specifically asserted that there was a substantive vacancy of L.T. Grade teacher in the institution which was duly informed to the Commissioner and when within the stipulated time the Commission did not recommend any candidate the Committee of Management had no alternative except to advertise the post of L.T. Grade teacher in the institution and did the same in accordance with law. It is pertinent to mention here that during the period of strike of teachers of private institution in 1977-78, in alternative some teachers were appointed in place of striking teachers. The teachers who resumed their duties between 9-1-78 to 19-1-78 (both inclusive) and who were paid the salary for the month of January 1978 were directed to be restituted by amalgating in original vacancy by Govt. vide the provision of Ordinance no. 12 of 1985 and vide those provisions of Ordinance no. 12 of 1985. The D.I.O.S. Basti issued a direction on 6-7-1985 to the Manager/ Principal of B.R. Inter College Harraiya, Basti to the effect that one Triloki Nath r/o Village Kolasiya. P.O. Pikaura, Distt. Basti was to be restituted on the post of L.T. Grade Teacher of Biology. The true copy of aforesaid direction issued by the D.I.O.S., Basti dated 6-7-1985 is being filed here and marked as R.A. 1 to the rejoinder affidavit. Thus in view of foregoing facts the plea that there never existed vacancy of L.T. Grade Asstt. Teacher (Biology) in the B.R. Inter College, Harraiya Basti is falsified." (emphasis added)
19. No document could be placed before this Court to demonstrate that any post was crated in 1985 which was lying vacant and whereagainst petitioner could have been appointed.
20. Moreover, even if this Court assume that any vacancy existed whereagainst one appointment could have been made on the post of Assistant Teacher (L.T. Grade) and petitioner is claiming his appointment thereagainst, yet he has to satisfy this Court that the appointment was made following the procedure prescribed in the Statute. The appointment is being claimed by petitioner to have been made in 1989, the case set up by petitioner is that the alleged vacancy was a substantive one. In 1989, admittedly, no appointment could have been made unless vacancy is requisitioned to Board and a candidate selected by it is not recommended in a particular time. In absence of such a recommended candidate by the Commission, an ad hoc appointment could have been made in accordance with procedure prescribed in Section 18 of Act, 1982 read with Clause 5 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order"). Section 18 of Act, 1982, as it stood at the time when appointment of petitioner claimed to have been made reads as under:
"18. Ad hoc Teachers.-(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."
21. Further the procedure for ad hoc appointment prescribed in First Order reads as under:
"5. Ad hoc appointment by direct recruitment. - (1) Where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5).
(2) The management shall, as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh.
(3) Every application referred to in clause (2) shall be addressed to the District Inspector of School and shall be accompanied:
(a) by a crossed postal order worth ten rupees payable to such Inspector;
(b) by a self-addressed envelop bearing postal stamp for purposes of registration.
(4) (a) The District Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.
(b) Where two or more candidates obtain equal quality points, the candidate obtaining higher percentage of marks in all examinations (High School, Intermediate, Graduate Degree and Post-Graduate Degree) essential for the particular grade, shall be placed higher and if such percentage is also equal, the candidate obtaining higher percentage of marks in the last essential examination of degree, as the case may be, shall be placed higher. In case percentage of marks in the last essential examination degree is also equal, the candidate senior in age shall be placed higher.
(5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and the names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institutions. This processes shall be repeated till both the lists are exhausted.
Explanation. - In relation to an institution imparting instruction to women the expression "District Inspector of Schools" shall mean the "Regional Inspectress of Girls Schools."
22. Admittedly from the facts stated in the writ petition, the procedure prescribed in First Order does not appear to have been followed. The effect of such contravention/ non compliance is that the very appointment of petitioner is void ab-initio. This aspect was considered by Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others (1996) 10 SCC 62 wherein it was held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab-initio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under:
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."
23. Again in para 11 of the judgment the Court held as under:
"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."
24. This decision has been followed and reiterated recently by the Apex Court in Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein the Apex Court has held as under:
"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 corresponding legal duty in the State."
25. In the circumstances, it cannot be said that the appointment of petitioner was validly made and hence he is entitled for payment of salary. I, therefore, find no reason to pass any order enabling petitioner to claim salary from the State Exchequer.
26. If the very appointment is illegal and non est being void ab initio, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise.
27. A three-Judge Bench of Apex Court presided by Hon'ble V.N. Khare, CJI (as His Lordship then was) in R. Vishwanathan Pillai Vs. State of Kerala & others 2004 (1) E.S.C. 152 in para 17 and 18 held as under:
"17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra Vs. Director, Primary Education, Bihar, AIR 1988 Pat 26. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held:
"13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in pubic service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow it."
18. We agree with the view taken by the Patna High Court in the aforesaid cases." (emphasis added)
28. In view of discussions made hereinabove, I do not find the petitioner, entitled for any relief. Writ petition, being devoid of merit, is hereby dismissed.
29. Further, in view of the fact that respondents miserably failed to demonstrate any reason whatsoever justifying the order dated 12.2.1999 and to explain as to what was the occasion for DIOS to pass such an order, following the exposition of law laid down by Apex Court in R. Vishwanathan Pillai (supra), it is provided that the fifty per cent of entire amount received by petitioner as salary or otherwise, pursuant to DIOS's order dated 12.2.1999, shall be recovered from petitioner and rest of fifty per cent of above amount shall be recovered from the then District Inspector of Schools, who passed the said order and thereafter shall be deposited in State Exchequer.
30. No costs.
Dt. 10.1.2013 PS Hon'ble Sudhir Agarwal,J.
Heard.
Cause shown for delay in filing restoration application is sufficient.
Delay in filing restoration application is condoned.
This application, accordingly, stands allowed.
Dt. 10.1.2013 PS-28644/92 (Delay Con. Application) Hon'ble Sudhir Agarwal,J.
This is an application requesting for recall of my order and judgment dated 28.7.2009 deciding writ petition on merits, though in absence of counsel for petitioner, since none had appeared when this case was called. It is stated that the counsels engaged by petitioner, namely, Sri R.R. Yadav and Sri D.P. Singh, were elevated to Bench and thereafter Sri P.K. Singh has filed his vakalatnama on 24.2.2005, but, his name was not shown in the cause list as a result whereof he could not appear and the said order was passed.
The aforesaid facts clearly borne out from record and appears to be true. In the circumstances, I recall my order and judgment dated 28.7.2009.
This application, accordingly, stands allowed.
Dt. 10.1.2013 PS-28644/92 (Recall/Restoration Application)