Allahabad High Court
Sanjay Tiwari And Others vs State Of U.P. And Others on 25 May, 2012
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - A No. - 4131 of 2006 Petitioner :- Sanjay Tiwari And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- P.N. Ojha,Ashok Khare Respondent Counsel :- C.S.C. Hon'ble B. Amit Sthalekar,J.
This writ petition has been filed by the four petitioners challenging the order dated 19.11.2005 passed by the Director Secondary Education U.P. Lucknow. The further prayer of the petitioner is to restrain the respondents from interfering in the working of the petitioners and to pay regular monthly salary to the petitioners from month to month.
The facts of the case in brief are that there is an Institution known as Merchant Inter College, Chitbaragaon, Ballia (the Institution). This Institution is recognized and is also on grant-in-aid list and is governed by the U.P. Intermediate Education Act, 1921 and the regulations framed thereunder and the U.P. Secondary Education Services Selection Board Act, 1982.
The case of the petitioners is that four permanent Assistant Teachers namely, Rudra Dev Singh, Sudama Ram, Bans Bahadur Singh and Uma Nath Singh working as permanent Assistant Teachers in the CT Grade were promoted on ad hoc basis as Assistant Teachers in the LT Grade against the vacancy arising therein. The petitioners were appointed as Assistant Teachers against the short-term vacancies. In 1989, the CT Grade was declared to be a dying cadre and all the CT Grade teachers were automatically merged into LT Grade. The petitioners were appointed in the LT Grade. The date of appointment of the petitioner Nos. 1 and 3 is 3.08.1993 and of the petitioner Nos. 2 and 4, it is 4.07.1993.
The case of the petitioners is that if they fulfill all the educational qualifications as well as training, and are therefore fully qualified for appointment on the post of Assistant Teacher in the LT Grade. These appointments being against the short-term vacancies, the same were made by a Resolution of the Committee of Management and approval to such appointments was also accorded by the D.I.O.S., Ballia by his order dated 22.08.1994. The petitioners started receiving their salaries from the month of August, 1994.
Somewhere around in the year 1995 an order was passed by the D.I.O.S. whereby payment of salary of several members of the staff of the same Institution was stopped including that of the petitioners. But subsequently, the D.I.O.S. passed order on 4.05.1998 approving the case of the petitioners for release of their withheld salary. As such, payment of salary to the petitioners was commenced and they continued to receive salary regularly up to January, 2003.
On 4.07.2002, a First Information Report was lodged by the Crime Branch, CID, Varanasi Division, Varanasi against 14 persons including the present petitioners, the Manager and Principal of the Institution. The said criminal proceedings were challenged by the petitioners in Criminal Misc. Writ Petition No. 4919 of 2005 Awadh Kishore Pathak Versus State of U.P. and others and the arrest of the petitioners in Crime Case No. 202 of 2002 was stayed but the petitioners were required to surrender before the court below, where their bail application would be dealt with, expeditiously. Subsequently a charge-sheet was filed in the Court of Chief Judicial Magistrate, Ballia. The said proceedings were again challenged by the petitioners in Criminal Misc. Writ Petition No. 12708 of 2005, Rajendra Prasad and others v. State of U.P. and others and the further proceedings in the Crime Case No. 3515 of 2005 were stayed. In the midst of the various criminal proceedings, the D.I.O.S., Ballia passed order dated 28.01.2003 directing the Finance and Accounts Officer to withhold the salary of the teachers and employees mentioned in the list enclosed and papers regarding appointment of the teachers including the petitioners were called for from the College.
Thus, once again payment of salary of the petitioner was stopped by the order dated 29.01.2003. An inquiry was held and on the basis of the report so submitted, the D.I.O.S. passed order dated 11.02.2003 directing the release of salary to a total of 75 teachers including the petitioners. The State Government also vide its order dated 18.06.2004 granted its sanction for release of salary to the teachers whose cases have been recommended.
In the meantime, the U.P. Madhyamik Shikshak Sangh, Ballia Unit filed a Writ Petition No. 25885 of 2003 for release of payment of salary of the teachers and non-teaching staff of different Institutions of the District Ballia. The said writ petition was disposed of by this Court by judgment dated 25.02.2004 with a direction to the Director of Education Secondary Education to decide the representation of the petitioner. When the order was not complied with, a Contempt Petition No. 1724 of 2005 was filed by the U.P. Madhyamik Shikshak Sangh against Sanjay Mohan, Director of Education (Secondary). Notices were issued in the contempt proceedings. However, an affidavit of compliance was filed by the Director of Education (Secondary) and along with the said affidavit a tabular chart was also filed detailing the names of employees whose salaries has been withheld and who were found to be 'not entitled' for payment of salary by the State Government. In the said Chart, the names of the petitioner Nos. 1, 2, 3 and 4 were mentioned at Serial Nos. 70, 63, 72 and 73 respectively. Against the name of the petitioner No. 1, it was stated that it is not clear as to how the vacancy occurred against which he was appointed. Appointment was made at a time when power of ad hoc appointment no longer remained with the Committee of Management and the decision with regard to requisition of the vacancy had not been made available.
As regards petitioner No. 2, it was mentioned that the CT Grade had been declared to be a dying cadre and the short-term CT Grade post had been treated to be a vacancy in the LT Grade and appointments made and a short-term vacancy could not be treated to be merged in the LT Grade scale.
For petitioner No. 3, it was stated that only a substantive post in the CT Grade was converted into a LT Grade and not a short-term vacancy and since Rudra Dev Singh finally stood to be absorbed in the LT Grade, there existed no vacancy in the CT Grade and lastly the Management did not have the power to make ad hoc appointments.
As regards, petitioner No. 4, it was stated that Uma Nath Singh had also been absorbed in the LT Grade and therefore, no vacancy remained in the CT Grade. And that the Management had no power to make ad hoc appointment in the year 1993. It was further stated that the appointments of the petitioners were subject to the order dated 3.06.1993 passed by the High Court in Writ Petition No. 19849 of 1993.
The petitioners further stated that the Writ Petition No. 19849 of 1993 was filed by four persons namely, Parmatma Nand Pandey, Kripa Shanker Tiwari, Brijendra Bahadur and Arvind Kumar Singh who claimed their entitlement for appointment as Assistant Teacher in the LT Grade in the College in question. In the said writ petition, this Court by an interim order dated 3.6.1993 had directed that till regular appointments are made, the petitioners (therein) shall continue to work as Assistant Teachers in the LT Grade and they shall be paid their salary.
The contention of the petitioners is that the said Writ Petition No. 19849 of 1993 had not been filed by them and therefore, any orders passed therein were not binding upon them. It was further stated that against the order dated 3.06.1993, a Special Appeal No. 530 of 1993, Committee of Management, Merchant Inter College, Chitbaragaon and others v. Parmatma Nand Pandey, was filed by the Committee of Management and the Division Bench by order dated 25.81993 suspended the operation of the interim order dated 3.6.1993. However, during the pendency of the Special Appeal, the Writ Petition No. 19849 of 1993 came to be dismissed by the learned Single Judge by order dated 18.5.2009.
The grievance of the petitioner is that in the impugned chart which has been filed as Annexure No. 14 to the writ petition, against the names of the petitioners, it has been mentioned that their appointment against the short-term vacancy in LT grade treating the same to be against the dying cadre CT grade was not permissible and besides their appointments were subject to the order dated 3.6.1996 passed in Writ Petition No. 19849 of 1993. In the impugned order dated 29.11.2005 also the same view has been reiterated.
The interpretation of the G.O. dated 4.9.1990 came up before this Court in Writ petition No. 77269 of 2005, Khem Chand versus State of U.P. and others wherein the Government Order dated 4.09.1990 was interpreted as follows:
"A perusal of the Government Order dated 4.09.1990 and the clarification at Item No.1 of the said Government Order demonstrates that in case such a short term vacancy comes into existence then permission can be granted to fill up such a post with a further explanation that in case the permanent incumbent on the post had been awarded L T grade on completion of 10 years then in that event the vacancy would be filled up by inviting candidates, who were qualified to be appointed in the LT grade. The clarification does not indicate that specifically in such situation as has emerged in the present case where Sri Haquim Singh had not completed 10 years in the CT grade and further was still continuing on ad hoc basis in the LT grade. Learned Standing Counsel also conceded that there is no specific clarification in this respect as to whether in such a situation a short term appointment could be made in the CT grade or not."
From the aforesaid, it would be clear that even though the CT grade had been declared to be a dying cadre, appointments on short term vacancy could have been made on the said post in the LT grade once the incumbent of the post was awarded the LT grade on completion of 10 years of satisfactory service. In this view of the matter, it cannot be said that the appointment of the petitioner in the LT grade against the dying cadre of CT grade was in any manner illegal or invalid. The other ground taken in the impugned order is that at the time of appointment, the Committee of Management did not have any power to make ad hoc appointment. This question has also been answered in the Writ Petition No. 78277 of 2005, Awadh Kishor Pathak v. State of U.P. and others wherein this Court referring to the judgment of the Full Bench in Radha Raizada and others Versus Committee of Management, Vidyawati Darbari Girls Inter College and others reported in 1994 (3) UPLBEC 1551 has held as follows:
"The Full Bench has considered the procedure and the provisions for ad hoc appointment even prior to 14.07.1992 and subsequent to 14.07.1992 to substantive and short term vacancy. The last reason that the Committee of Management was not empowered to make ad hoc appointment on 14.07.1992 is also incorrect. It is true that from 14.07.1992 the Committee of Management was denuded the authority to make ad hoc appointment even after 14.07.1992. The Committee of Management however retained the power to make ad hoc appointment on short term vacancy in accordance with the provisions of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. The Full Bench judgment of this Court is fully applicable and covers the field."
Similar view has been taken by a Division Bench of this Court in the case reported in 2010 (10) ADJ 829, Daya Shanker Misra V/s District Inspector of Schools and others. The Division Bench has held as follows:
"29. The next question to be considered which is inter-related is as to whether there is any power with the management surviving to make Ad hoc appointments on short-term vacancies after insertion of Section 33-E in the 1982 Act which rescinded the various Removal of Difficulties Orders issued. With regard to this question two aspects have to be considered. Firstly the effect of Section 32 of the 1982 Act, which provides that the provisions of 1921 Act, the Rules and Regulations made thereunder. Secondly whether there is any power under the 1921 Act or the Regulations framed thereunder to fill up short-term vacancies.
30. We may note here with emphasis that Section 32 of the 1982 Act uses the words selection, appointment and promotion of a teacher. The words selection, appointment and promotion will include substantive as well as short-term vacancies. Further we have to see whether there is any inconsistency or not in the provisions of the two Acts and the Rules and Regulations framed thereunder. We have already held above that the power of the Board to make selections is only with regard to appointments against substantive vacancies. There is no provision under the 1982 Act for making selection for appointments against short-term vacancies.
31. Under the 1921 Act, the procedure for selection of teachers and head of the institution is laid down in Section 16-E thereof. Power of the management to fill up short-term vacancy having occurred on account of leave extending for more that six months or on suspension is specifically provided in sub-section 11 of Section 16-E of the 1921 Act. Further Chapter-II of the Regulations framed under the 1921 Act deals with the appointments of heads of the institutions and teachers. It refers to Sections 16-E, 16-F and 16-FF of the 1921 Act. Regulation 9 of the said Chapter confers the power on the management to fill up the short-term vacancies arising out of leave exceeding period of six months and suspension of a teacher having been approved. The management thus was vested with the power under the 1921 Act and the Regulations framed thereunder to fill up short-term vacancy. Further as there is no provision under the 1982 Act or the Rules and Regulations framed thereunder with regard to filling up of short-term vacancies, it can be safely concluded that there is no question of any inconsistency in the two Acts or Rules and Regulations framed thereunder for filling up short-term vacancies. Thus taking aid of Section 32 of the 1982 Act the definition of vacancy given in 1998 Rules and the provisions contained in Section 16-E(11) of the 1921 Act and the regulation 9 of the Chapter 11 of the Regulations framed under the 1921 Act.
33. We have also dealt with the practical aspect of the matter that in order to maintain not only the discipline but also the standard of education and commitment enforced under the Constitution, regular teaching is essential. For enforcing the same, in the given circumstances and under emerging situations, the short-term vacancies need to be given urgent attention. If short-term vacancies are not filled up in time, the teaching would intensely suffer. Apparently for this reason the Legislature knowing fully well that selections will be made by the Board, not for individual cases, but at State level would result into long durations, left the selection for short-term vacancies outside the purview of the Board."
From the facts already noted above, the petitioners were not party to Writ Petition No. 19849 of 1993, in which the interim order dated 3.6.1993 was stated to have been passed. Even otherwise, the said writ petition was dismissed by this Court on 18.05.2009 and therefore any order passed therein would not be of any assistance to the respondents, so far as the appointment of the petitioners in the LT grade is concerned.
On a conspectus of facts and law laid down by this Court in the two judgments referred to hereinabove, all the three objections taken by the D.I.O.S. in holding the appointment of the petitioners to be void, is therefore absolutely erroneous and liable to be set aside by the Director of Education. The impugned order dated 29.11.2005 is therefore quashed. The writ petition is allowed. The appointment of the petitioners in the LT grade post is therefore held to be valid.
As far as the payment of salary is concerned, the petitioners were already drawing salary in the LT grade and therefore on the impugned order being quashed by this Court and the appointment of the petitioners in the LT grade being held to be valid, the petitioners would be entitled to continue to get salary in the LT grade from month to month. They will also be entitled to all arrears of salary which shall be paid to them within a period of two months from the date, a certified copy of this order is received by the Director, Secondary Education, U.P. Lucknow, respondent No. 2.
The respondents are further directed to consider the case of the petitioners for regularization under the provisions of Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982.
This exercise regarding consideration for regularization shall be completed by the respondents within a period of 4 months from the date a certified copy of this order is received by the Director, Secondary Education, U.P. Lucknow.
Order Dated:25.05.2012 Arun K. Singh