Allahabad High Court
Girdhari Lal Koli vs State Of U.P. And Another on 17 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 338
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 92 Case :- WRIT - A No. - 10841 of 2019 Petitioner :- Girdhari Lal Koli Respondent :- State of U.P. and Another Counsel for Petitioner :- Rajnish Kumar Srivastava,Sri Gajendra Pratap, Sr. Advocate Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Heard learned counsel for the petitioner and Sri Vishal Sing, learned Additional Chief Standing Counsel for the State.
By means of present writ petition, petitioner has challenged the impugned suspension order dated 24.05.2019 passed by respondent no.1 as contained in annexure no.4 to the writ petition.
Facts, in brief, of the present case are that initially in the matter in question one Sri Brij Bhushan Rai had approached this Court by filing Writ Petition No.25101 of 1999 which was dismissed of vide order dated 18.09.2004, the relevant portion of the same reads as under:-
" It has been contended on behalf of management that the petitioner was paid salary as 20th L.T. Grade teacher allegedly while there were only 18 posts of L.t. Grade. The petitioner is not entitled for any salary . The observations made against the conduct of Management in the report dated 20.11.2003 is baseless without affording any opportunity of hearing to the management in this regard. the forged approval later came from the office of the District Inspector of Schools at the instance of the petitioner in collusion with the officials of D.I.O.S. The report dated 29.11.2003 has been submitted ignoring the documents produced by the Management before the joint director of Education, Allahabad in rspect to forged approval letter and misplacing the entire record of the case.
It has specifically been submitted on behalf of Management that the petitioner is again trying to mislead the Court stating that Viond Kumar Rai is getting salary of lecturer. In fact, one Mr. Rajeshwar Rai, lecturer of Political Science (Civics) was retired on 30.06.2003 against which Mr. Viond Kumar Rai was promoted as lecturer of Civics in July,2003 as Mr. Vinod Kumar Rai was M.A. with Political Science also and his promotion was approved by the Joint Director of Education of Varanasi vide order dated 27.08.2003 and now Mr. Vinod Kumar Rai is getting salary as lecturer of Civics not as lecturer of Chemistry.
In view of the aforesaid facts and circumstances of the case and observations the order impugned in the present writ petition required no interference therefore , the writ petition is dismissed."
Against the order dated 18.09.2004, a Special Appeal no.1640 of 2008 (Brij Bhushan Rai Vs. District Inspector of Schools, Jaunpur and other) was filed in which this Court has passed an order dated 20.07.2015. The same are quoted below:-
"1. Heard Sri N.L. Srivastava, counsel for the appellant and Sri Vimlesh Kumar Rai and standing counsel appearing for the respondents. Perused the record.
2. This special appeal has been preferred challenging the correctness of judgment and order dated 18.9.2004 passed in Writ Petition No. 25101 of 1999, Brij Bhushan Rai Vs. D.I.O.S.,Jaunpur and others, by which learned Single Judge dismissed the writ petition filed by the present appellant.
3. On 20.7.2015, the Court passed the following order :
"The appellant claimed appointment against short-term vacancy, which has arisen on account of promotion of Sri V.K. Rai from L.T. Grade to Lecture Grade in Chemistry. The appointment letter in favour of the appellant is dated 4.9.1997, which is said to have been approved by the then District Inspector of Schools, Jaunpur Sri S.K. Verma on 12.9.1997. When the salary of the appellant has been stopped in the year 1999, the appellant approached this Court. The learned Single Judge has held that the appointment of the appellant was not in accordance to law. The Management filed counter affidavit denying promotion of Sri V.K. Rai.
Learned counsel for the appellant has heavily placed reliance on the inquiry report dated 5.11.2001 submitted by the Finance and Accounts Officer Sri Liyakat Ali through the District Inspector of Schools, Jaunpur, which is the subsequent inquiry.
From the record, it is not clear that when the resolution has been passed by the Committee of Management for promotion of Sri V.K. Rai and when the resolution has been approved by the District Inspector of Schools, thereafter, by which order Sri V.K. Rai has been promoted causing short-term vacancy and, thereafter, when the advertisement was issued and in pursuance of the said order when the Selection Committee has been formed and on which date interview took place wherein the appellant claims to have been selected. Whether the approval to the appointment of the appellant has been granted by the District Inspector of Schools or not, is not clear.
In view of the above, we direct the District Inspector of Schools, Jaunpur to file an affidavit within three weeks and produce the record on the next date fixed.
List this case on 24.8.2015."
4. Pursuant to the aforesaid order, an affidavit has been filed by the DIOS and in paragraph no. 8 of the said affidavit, it has been averred that appointment of the appellant-petitioner was approved by the then DIOS, Jaunpur vide letter dated 12.9.1997, a copy of which has been appended as annexure no. 5 to the said affidavit. In paragraph no. 3 of the counter affidavit to the affidavit filed by the DIOS, it has been averred that it is clear that appellant was appointed as Assistant Teacher in the institution after advertisement and due selection; that after recommendation of the selection committee, the committee of management passed a resolution dated 4.9.1997 and appointed the appellant as Assistant Teacher; that the then DIOS approved the appellant's appointment vide order dated 12.9.1997 and that from the date of appointment, the appellant is working continuously as Assistant Teacher in the institution.
5. It appears that case of the management before the writ Court was that since the appellant was paid salary as 20th L.T. Grade teacher and there were only 18 posts of L.T. Grade, he was not entitled for any salary; that a forged approval letter came from the office of the DIOS at the instance of the appellant in collusion with the officials of DIOS; that report dated 29.11.2003 has been submitted ignoring the documents produced by the management before the Joint Director of Education in respect of forged approval letter and misplacing the entire record of the case. The management has further submitted before the writ Court that appellant had tried to mislead the Court stating that Vinod Kumar Rai is getting salary of lecturer. In fact, one Mr. Rajeshwar Rai, lecturer of Political Science (Civics) retired on 30.6.2002, against which Mr. Vinod Kumar Rai was promoted as lecturer of Civics in July 2003 as Mr. Vinod Kumar Rai was M.A. with Political Science also and his promotion was approved by the Joint Director of Education, Varanasi vide order dated 27.8.2003 and now Mr. Vinod Kumar Rai is getting salary as lecturer of Civics not as lecturer of Chemistry.
6. It appears on the basis of aforesaid submissions made on behalf of the management, inference was drawn by learned Single Judge that appellant had been working on the basis of forged approval letter which allegedly came from the office of DIOS as indicated above. However, in view of the fact that DIOS in his affidavit, has clearly stated that order of approval in respect of appellant's appointment had been issued from the office of DIOS and the same was not a forged one, in our view, the impugned judgment and order dated 18.9.2004, cannot be sustained in the eyes of law and is liable to be set aside.
7. In view of what has been stated above, the present special appeal succeeds and is allowed. The impugned judgment and order dated 18.9.2004 is set aside and the order dated 31.3.1999 of the DIOS not to release appellant's salary, is quashed. Let the consequences follow. No order as to costs."
In pursuance of the said fact, impugned order dated 24.05.2019 as contained in annexure no.4 has been passed by respondent no.1 by which petitioner has been placed under suspension.
Aggrieved by the said facts, petitioner approached this Court by filing present writ petition. On 02.08.2019 this Court has passed the following orders:-
"Following orders were passed in the matter on 26.7.2019:-
"An order of suspension dated 24.5.2019 is assailed in this petition. Petitioner at the relevant point of time was the District Inspector of Schools, Jaunpur. Charge against the petitioner is that he had colluded with the person, who filed special appeal, in filing of a false affidavit before the Division Bench in Special Appeal No.1640 of 2008.
Learned Senior Counsel has invited attention of the Court to an order passed on 20.7.2015 in Special Appeal No.1640 of 2008, which reads as under:-
"The appellant claimed appointment against short-term vacancy, which has arisen on account of promotion of Sri V.K. Rai from L.T. Grade to Lecture Grade in Chemistry. The appointment letter in favour of the appellant is dated 4.9.1997, which is said to have been approved by the then District Inspector of Schools, Jaunpur Sri S.K. Verma on 12.9.1997. When the salary of the appellant has been stopped in the year 1999, the appellant approached this Court. The learned Single Judge has held that the appointment of the appellant was not in accordance to law. The Management filed counter affidavit denying promotion of Sri V.K. Rai.
Learned counsel for the appellant has heavily placed reliance on the inquiry report dated 5.11.2001 submitted by the Finance and Accounts Officer Sri Liyakat Ali through the District Inspector of Schools, Jaunpur, which is the subsequent inquiry.
From the record, it is not clear that when the resolution has been passed by the Committee of Management for promotion of Sri V.K. Rai and when the resolution has been approved by the District Inspector of Schools, thereafter, by which order Sri V.K. Rai has been promoted causing short-term vacancy and, thereafter, when the advertisement was issued and in pursuance of the said order when the Selection Committee has been formed and on which date interview took place wherein the appellant claims to have been selected. Whether the approval to the appointment of the appellant has been granted by the District Inspector of Schools or not, is not clear.
In view of the above, we direct the District Inspector of Schools, Jaunpur to file an affidavit within three weeks and produce the record on the next date fixed.
List this case on 24.8.2015."
An affidavit thereafter was filed by the petitioner on 6.10.2015. Learned Senior Counsel points out that short term appointment in question was made in the year 1997 and petitioner was not even the District Inspector of Schools at that point of time. It is urged that petitioner has merely filed an affidavit bringing on record materials which exits on the concerned office file maintained in the office of District Inspector of Schools. Ultimately, the special appeal no.1640 of 2008 has been allowed on 20.1.2016 by passing the following order:-
" In view of what has been stated above, the present special appeal succeeds and is allowed. The impugned judgment and order dated 18.9.2004 is set aside and the order dated 31.3.1999 of the DIOS not to release appellant's salary, is quashed. Let the consequences follow. No order as to costs."
Submission is that any action taken in light of the direction issued by the Division Bench of this Court cannot be construed as an act of misconduct and petitioner cannot be placed under suspension on such ground.
Learned Standing Counsel may obtain instructions in the matter, by the next date fixed.
Put up as fresh on 2.8.2019."
Learned Standing Counsel has obtained instructions. It is stated that a counter affidavit shall be filed within four weeks. Let that be done.
Rejoinder affidavit may also be filed within two weeks, thereafter.
List thereafter.
Till the next date of listing, it would be open for the respondents to proceed departmentally against the petitioner and petitioner undertakes to cooperate in it, but petitioner shall not be kept under suspension and to that extent there would be a stay against order dated 24.5.2019. Petitioner shall be entitled to continue in service and shall be paid salary."
Thereafter on 04.12.2019 this Court has confirmed the interim order dated 02.08.2019 I have heard learned counsel for the parties and gone through the record.
Admittedly, in the present case an inquiry against the petitioner has been instituted as per rules which governs the filed and the same is pending.
Thus, taking into consideration the said facts as well as the order passed by this Court which quoted herein above and as agreed between the parties, the writ petition is disposed of with the direction that the respondent/ competent authority shall complete the inquiry and pass final orders within a period of six months from today as per rules which governs the field.
For a period of six months or till the final order is passed by the competent authority against the petitioner, the petitioner is entitled for interim protection given by this court i.e. he shall be entitled in service and shall be paid salary however it will be open to the competent authority to take work or not from him Order Date :- 17.2.2020 dk/-