Allahabad High Court
Om Prakash vs State Of U.P. Through Director Of ... on 5 January, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:2247 Court No. - 34 Case :- WRIT - A No. - 8569 of 2019 Petitioner :- Om Prakash Respondent :- State Of U.P. Through Director Of Education (Secondary) Shiksha Arth (1) Anubhag, And 2 Others Counsel for Petitioner :- Fuzail Ahmad Ansari,Adarsh Singh,Indra Raj Singh Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard Sri Adarsh Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
2. Petitioner is retired as a Head Clerk of the institution, namely, Kaushalya Kanya Inter College, Moradabad. There is no quarrel regarding appointment made on sanctioned post of Head Clerk by the Committee of Management by following the procedure prescribed for selection and appointment and the approval granted to his appointment by the then Regional Inspectress of Girls School 12th Region, Moradabad under order dated 14th February, 1991. Periodical increments and pay revisions have taken place from time to time at the end of office of District Inspector of Schools without any dispute.
3. The controversy arose regarding Advancement Career Progression Scheme benefit to be conferred upon the petitioner and such other employees for which a necessary Circular came to be issued by the Chief Secretary, Government of Uttar Pradesh on 23rd December, 2010 giving benefit with effect from 1st January, 2006 with different slabs by ACP benefits on completion of respective years of service prescribed for therein.
4. Joint Director of Education, 12th Region, Moradabad issued a letter on 28th January, 2015 for payment of arrears as per the ACP benefit schemes to various employees working in the district, which included the name of petitioner at serial No.- 5, for a sum of Rs.64,028/- between December, 1998 and June, 2008. However, when arrears have not been paid to the petitioner, petitioner approached the District Inspector of Schools but he orally assured that the same would be paid to him. Ultimately, District Inspector of Schools, Moradabad wrote a letter back to the Committee of Management on 8th March, 2016 for payment of ACP benefits and arrears of increments and forwarded the bills accordingly along with original records, without undue delay. When nothing happened District Inspector of Schools again sent a reminder to Manager to take action pursuant to his earlier letter.
5. In the circumstances, petitioner did apply before District Inspector of Schools through Manager for the pay scale of Rs.9300-34800 as on 1st December, 2008 for second ACP and that from 1st December, 2016 for third ACP benefits in terms of grade pay of Rs.4200 and 4800 respectively in the light of the Government order dated 24th March, 2015. However, when nothing further was done, petitioner had to approach this Court by filing writ petition being Writ - A No.- 3313 of 2017 which was disposed of on 23rd January, 2017 with a direction to the District Inspector of Schools to decide the matter after giving opportunity of hearing to the petitioner. This time in compliance of the order of this Court dated 23rd January, 2017 District Inspector of Schools, Moradabad passed a final order on 20th April, 2017 with a direction that all the arrears be paid to the petitioner, however payment thereof would be subject to the order that may be passed in the writ petition filed by one Navneet Kumar Sharma in Writ - A No.- 34910 of 2003, in which the second candidate in the merit list in which petitioner was placed at serial No.- 1 had questioned the appointment of the petitioner.
6. It is worth noticing here that said writ petition was finally dismissed on 25th October, 2018 against which an intra court appeal being Special Appeal No.- 1190 of 2018 was also dismissed on 28th November, 2018. Again District Inspector of Schools wrote a letter to the Manager on 19th February, 2018 to forward the bill of the petitioner but the same was lingered on and so petitioner filed another writ petition being Writ- A No.- 11316 of 2018 which was disposed of with a direction to the District Inspector of Schools to proceed to take necessary steps to ensure compliance of its own order. The entire order passed by the writ Court is a short one and, therefore, the same is reproduced hereunder:
"An order has been passed in favour of the petitioner by the District Inspector of Schools, Moradabad, dated 20.4.2017, whereby petitioner's claim for arrears of salary and second and third ACP has been accepted. The benefits, however, have not been extended to petitioner. The District Inspector of Schools has also written a letter to the Committee of Management directing the Committee to forward the salary bills failing which appropriate action in law would be taken against it. Grievance is that despite all such communication, the benefits have not been extended to the petitioner so far.
Learned Standing Counsel submits that the authority concerned shall invoke jurisdiction as would be warranted in the facts and circumstances of the present case to ensure release of payment to the petitioner in accordance with law.
Considering the nature of order proposed to be passed, notices need not be issued to respondent no.4 and the writ petition is being disposed of at this stage itself.
From the materials brought on record, it appears that petitioner's claim has already been accepted vide order dated 20.4.2017. An order has been passed in favour of the petitioner, which has not been interfered with by any higher authority or by any court of competent jurisdiction. In such circumstances, the authority concerned would be required to take necessary steps to have it implemented. It appears that process has already been initiated by the Inspector by issuing notice on 19.2.2018. In case the Inspector finds that without any justifiable reasons salary bills of the petitioner are not being submitted in compliance of the order dated 20.4.2017, the Inspector shall proceed to take necessary steps as are vested by him in law to ensure compliance of its own order. The required consideration shall be made within a period of two months from the date of presentation of certified of this order.
Subject to the aforesaid observations, this petition stands disposed of."
7. District Inspector of Schools passed a consequential order giving ACP benefits on 13th July, 2018 and fixing pay of petitioner accordingly. A letter for arrears of salary w.e.f. 1st December, 2008 to 30th December, 2016 and then 1st January, 2016 to 30th June, 2018 as per the 2nd ACP benefits were forwarded to the Joint Director of Education, Prayagraj for necessary sanction. Letter of the District Inspector of Schools dated 16th October, 2018 is reproduced hereunder:
"प्रेषक जिला विद्यालय निरीक्षक मुरादाबाद।
सेवा में शिक्षा निदेशक (मा०) शिक्षा अर्थ (1) अनुभाग इलाहाबाद।
पत्राकः ग्रा०अव०अनु०/ /2018-19 दिनांक 16.10.2018 विषयः श्री ओम प्रकाश, प्रधान लिपिक के अवशेष देयक अनुमन्यता स्वीकृति के सम्बन्ध में।
महोदय, उपरोक्त विषयक प्रबन्धक, कौशल्या कन्या इण्टर कालिज मुरादाबाद के पत्रांकः के०के०बी०/अवशेष/56/2018-19 दिनांक 04.10.2018 द्वारा श्री ओम प्रकाश प्रधान लिपिक का ए०सी०पी० अवशेष देयक इस कार्यालय को अनुमन्यता स्वीकृति हेतु उपलब्ध कराया गया है।
उक्त के सम्बन्ध में अवगत कराना है कि माननीय उच्च न्यायालय इलाहाबाद में योजित याचिका सं०/11316/2018 में पारित आदेश दिनांक 07.05.2018 के अनुपालन में जिला विद्यालय निरीक्षक (द्वितीय) मुरादाबाद के पत्रांकः ए०सी०पी०/298-400/2018-19 दिनांक 13.07.2018 द्वारा श्री ओम प्रकाश प्रधान लिपिक का दिनांक 01.12.2008 से द्वितीय ए०सी०पी० एवं दिनांक 01.12.2016 से तृतीय ए०सी०पी० अनुमन्यता स्वीकृति की गई थी। जिसके आलोक में प्रबन्धक, कौशल्या कन्या इण्टर कालिज मुरादाबाद ने दिनांक 01.12.2008 से 30.12.2016 तक रू० 4,62,580=00, 01.01.2016 से 30.06.2018 तक रू० 2,86,628=00 अवशेष देयक तैयार कर संलग्नों सहित प्रेषित किया गया है।
अतः उक्त अवशेष देयक संलग्नकों सहित अनुमन्यता स्वीकृति हेतु प्रेषित है।
संलग्नक-
1- प्रपत्र-क 2- संक्षिप्त इतिहास 3- ए०सी०पी० स्वीकृति आदेश दिनांक 13.07.2018 की प्रति।
4- मा०उ०न्या०इलाहाबाद के आदेश दिनांक 07.05.2018 की प्रति।
5- सेवा पंजिका की छायाप्रति।
6- अवशेष देयक रू० 4,62,580=00, रू० 2,86,628=00 भवदीय (प्रदीप कुमार द्विवेदी) जिला विद्यालय निरीक्षक मुरादाबाद।
पृ०सं०ः ग्रा०अव०अनु०/7803-04/2018-19 दिनांक- उक्तवत्।
प्रतिलिपि- प्रबन्धक, कौशल्या कन्या इण्टर कालिज मुरादाबाद को सूचनार्थ प्रेषित।
ह० अपठनीय 16/X/18 जिला विद्यालय निरीक्षक मुरादाबाद।"
8. Again when nothing further happened regarding sanction arrears of salary, petitioner approached this Court vide Writ- A No.- 2758 of 2019. District Inspector of Schools was required to file personal affidavit in the matter and then Director of Education passed an order dated 16th March, 2019 negating the claim of the petitioner for arrears of salary on the ground that the post upon which petitioner petitioner was appointed was Head Clerk, that was liable to be filled up by way of promotion only as per the Regulation 2(2) of Chapter III of Intermediate Education Act, 1921, but instead of promoting class III employee working on the post of Assistant Clerk as Head Clerk, the post was directed to be filled up by direct recruitment. Such an appointment was taken to be bad being against the mandatory provisions of law. A further direction is issued to take action against the erring officials who carried out the exercise of approval of such an appointment.
9. The law was well settled as back as in the year 2006 in the case of Jai Bhagwan Singh v. District Inspector of Schools, Gautam Budh Nagar and others, 2006 3 UPLBEC 2391 wherein it was very clearly held that in the event to fill up the post of Head Clerk, which was liable to be filled up by promotion, a candidate was not available, the said post could be filled up by way of direct recruitment. This judgment of Jai Bhagwan Singh (supra) was noticed by Division Bench of this Court in the case of Munna Lal v. Devendra Bahadur Singh Chandel and others, 2007 (3) UPLBEC 2728. Vide paragraph 3, 4, 5 & 6 of the judgment, the Court held thus:
"3. Shri P.N.Saxena, Senior Advocate assisted by Shri Alok Dwivedi, Advocate on behalf of the Appellant Munna Lal submits that the issue as to whether a single post of Class III created in a recognized Intermediate College is to be filled by promotion in terms of Regulation 2(2) of Chapter III or by direct recruitment has been considered by a Divisional Bench of this Court in the case of Jai Bhagwan Singh v. District Inspector of Schools, Gautam Budh Nagar and Ors. 2006 3 UPLBEC 2391. The Division Bench of this Court has held that one single post of Class III is to be filled by promotion at the first instance and in case suitable candidate for promotion is not available direct recruitment cannot be resorted to. He, therefore, submits that the Hon'ble Single Judge has failed to take note of the said Division Bench judgment. The Appellant has a right to claim promotion against one single post of Class III. He further points out that compassionate appointment can only be offered against a vacancy which is within the quota for direct recruitment and, therefore, appointment offered to the petitioner on compassionate ground against one single Class III post is legally not justified.
4. Faced with the aforesaid contentions, Shri Ashok Khare, Senior Advocate assisted by Shri P.N.Ojha submits that the Appellant Munna Lal is not eligible for promotion on the said Class III post. Therefore, the Appeal is misconceived. The legal position qua the issue of manner of appointment on one single Class III post as explained by the Division Bench of this Court in the case of Jai Bhagwan Singh (Supra), i.e. the one single post of Class III has to be filled at the first instance by way of promotion and if the suitable candidate is not available, direct recruitment can be resorted has not been disputed. He however submits that the petitioner has been appointed under Regulation 101 to 107 and even if there is no vacancy in the said institution, he is entitled to be adjusted elsewhere and, therefore, payment of salary could not be stopped, more so, when the petitioner is continuously working in the institution.
5. We have heard learned Counsel for the parties and have gone through the records of the present case.
6. The legal position with regards to the mode and manner of appointment against a single post of Class III in a recognized Intermediate College has been considered in the case of Jai Bhagwan Singh (Supra) and it has been held that the vacancy has to be filled by way of promotion at the first instance. Devendra Bahadur Singh has been offered appointed on compassionate ground against a Class III post which was the only post duly created in the institution in question. Such compassionate appointment could have been offered to Devendra Bahadur Singh only if no eligible candidate entitled to be considered for promotion was available in the institution."
10. Subsequently, this view has been followed by a coordinate Bench of this Court in the case of Ved Prakash Pandey v. State of U.P. and others (Writ - A No.- 16010 of 2013) decided on 21st March, 2013, wherein the Court held that such a post, if cannot be filled by promotion, it can be filled by the direct recruitment. The relevant paragraph of the order dated 21st March, 2013 is reproduced hereunder:
"In view of what has been discussed hereinabove, the post of Head Clerk has, therefore, to be filled up by way of direct recruitment. There is no bar or prohibition under Chapter III Regulation-I2 of the 1921 Act that may prevent the management from making appointment on the post of Head Clerk by way of direct recruitment. As in the instant case, there is no candidate available for promotion, then the only option is to fill up the post by way of direct recruitment. The very provision of 50% promotion quota clearly entails that the post which is left vacant, has to be filled up by way of direct recruitment. Thus on both counts the Committee of Management will have the power to fill up the post by way of direct recruitment.
So far as qualifications are concerned, the post of the Head Clerk or even otherwise of a Class III employee is the same as provided for, in the government run secondary institutions. The management will therefore, have to take in to account the said qualification for the purpose of filling up of the post of the Head Clerk in a peculiar situation that has cropped up in the present case. The management can also take into account the fact that a candidate available who has put in more than five years of service in any other institution may apply for direct recruitment. In such a situation, it is open for the Committee of management to apply the said principle also for the purpose of recruiting a Head Clerk in a privately managed educational institution under the U.P. Intermediate Education Act, 1921 in addition to the other statutory qualifications as are prescribed for such a post in government run institutions."
11. It is an admitted position in the case that two Assistant Clerks working in the institution refused to be promoted as Head Clerk and consequently the vacancy was advertised upon which petitioner came to be appointed and then approval was also granted by the District Inspectress of Girls School and petitioner continued to work as such until he attained the age of superannuation. Such pleas have been taken in paragraphs 6, 7, 8, 9, 10 and 11 of the writ petition which has not been denied at all in paragraphs 5, 6, 7 & 8 of the counter affidavit filed on behalf of the respondent Nos. 2, 3 & 4.
12. Taking the petitioner to be regularly appointed as Head Clerk in a substantive vacancy of the institution the pay fixation was also directed by the District Inspector of Schools as per the Circular letter granting ACP benefits finally on 16th October, 2018 and pleadings to this effect raised in paragraphs 33, 34, 35, 36 & 37 of the writ petition have also not been disputed except that the order passed by the District Inspector of Schools an incorrect pay fixation was done. Neither the order of the District Inspector of Schools dated 20th April, 2017, 19th February, 2018 and consequential order dated 13th July, 2018 and 16th October, 2018 have been recalled or annulled, nor any reason has been assigned as to why appointment was bad except for the provisions that vacancy was to be filled up by promotion and not by direct recruitment. Once the position remained admitted that two Assistant Clerks declined to be promoted as Head Clerk and waived their rights for promotion voluntarily, the Committee of Management was left with no other option but to proceed in accordance with the judgment of Division Bench of this Court in the case of Jai Bhagwan (supra) followed in another Division Bench judgment of this Court in Munna Lal (supra). There is no illegality cited as such in the order impugned, regarding sanction of vacancy in question and availability thereof and selection and appointment of petitioner as Head Clerk.
13. In view of the above, the order dated 16th March, 2019 cannot be sustained in law.
14. Thus writ petition succeeds and is allowed. The order dated 16th March, 2019 passed by the Director of Education (Secondary), Shiksha Arth (1) Anubhag, Allahabad impugned in the writ petition is hereby quashed. Petitioner is held entitled to entire arrears of salary along with interest as may be admissible in law. However, there will be no order as to cost.
Order Date :- 5.1.2024 Atmesh