Allahabad High Court
Smt. Madhuri Devi Wife Of Shri Arun Kumar ... vs District Inspector Of Schools (Ii), ... on 12 March, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. Both these writ petitions are connected and, therefore, as requested by the learned Counsel for the parties, have been heard together and are being decided by this common judgment.
2. The writ petition No. 29208 of 1996 has been filed by the the petitioners Smt. Madhuri Devi, Smt. Archana Saxena and Smt. Smit Tiwari [hereinafter referred to as petitioners (first set)] seeking a mandamus commanding the respondents to pay salary to the petitioners with effect from 1.2.1996. By way of an amendment application, which was allowed by the Court's order dated 15.7.1996 a writ of certiorari has also been sought , quashing the order dated 14.10.1996 passed by the Deputy Director of Education (Secondary), Kanpur Mandal, Kanpur (hereinafter referred to as 'DDE') declining to grant financial approval to the appointment of the petitioners.
3. The writ petition No. 40743 of 2004 is the result of certain subsequent orders of the educational authorities taken during the pendency of the aforesaid writ petition and the petitioner Smt. Smit Tiwari [hereafter referred to as petitioner (second set)] has filed the same. It appears she was promoted to L.T. Grade by the committee of management after obtaining approval from the District Inspector of Schools, Kanpur Nagar (hereinafter referred to as 'DIOS') which was granted by the DIOS's order dated 10.2.2002. The Joint Director of Education, Kanpur Mandal, Kanpur however found the aforesaid approval being illegal and, therefore, cancelled the same by his order dated 15.7.2004 pursuant whereto the DIGS also issued a consequence order dated 6.8.2004 whereagainst the petitioner Smit Tiwari has filed writ petition No. 40743 of 2004 challenging the orders dated 15.6.2004 and 6.8.2004 and seeking a mandamus commanding the respondents not to interfere in her functioning as Assistant Teacher, L.T. Grade, and pay salary on the said post regularly.
4. The brief facts which are necessary for adjudication of the matter are that Kaushalya Devi Balika Uchchatar Madhyamik Vidyalaya, Kidwai Nagar, Kanpur (hereinafter referred to as the 'College') is a recognized institution by the Board of High School and Intermediate Education under the provisions of U. P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act') and is aided College governed by the provisions of U. P. High Schools and Intermediate Colleges (Payment of Salary of Teachers and other Staff) Act, 1971 for payment of salary to the teachers and other staff of the college. The manager of the College vide letter dated 1.1.1996 sought permission from the DIGS for making appointment on three posts of Assistant Teachers (B.T.C. grade) lying vacant in the College. It is said that the aforesaid permission was granted by DIGS on 4.1.1996 whereafter vacancies were advertised in a daily news paper 'Dainik Gatha' published from Kanpur and after making selection, appointment letters were issued to the three petitioners namely Smt. Madhuri Devi, Archana Saxena and Smit Tiwari on 27.1.1996 by the manager of the Committee of the Management of the College. The documents pertaining to appointment of petitioners (first set) were submitted in the office of DIGS on 1.2.1996 seeking his approval. It appears that the matter pertaining to the girls colleges was being looked after by the Regional Inspectress of Girls Schools (hereinafter referred to as 'RIGS') and vide G.O. dated 9.4.1992 the posts of RIGS was designated as DDE and District Inspectress of Girls Schools was designated as District Inspector of Schools (Secondary). Consequently the work of RIGS at Kanpur was being looked after by the DDE. Hence, the DIGS forwarded the papers to DDE for his approval vide his letter dated 9.6.1996. The DDE vide order dated 14.10.1996 declined to grant financial approval on the ground that the appointments were not made in accordance with law inasmuch as neither vacancies were advertised in the news papers having wide circulation in the state nor reservation on the post was observed nor the approval was obtained from the competent authority and the number of posts sanctioned in the College were also not clearly stated though as per financial survey the college was found to have only three sanctioned posts.
5. Though the petitioners (first set) by means of an amendment application sought to challenge the order dated 14.10.1996 and also prayed for an interim order restraining the respondents from terminating their services but the record does not show that any interim order was passed in favour of the petitioners (first set). However the fact remains that the management allowed them to continue in service even after the approval was declined by the DDE by order dated 14.10.1996.
6. The subsequent events are evident from the facts stated in the writ petition No. 40743 of 2004. It appears that the Education Minister (Secondary) sent a letter dated 13.7.1997 to the DDE seeking his report in the matter in furtherance whereto the DIGS (Secondary) Kanpur sent his report along with the covering letter dated 11.9.1997 to the Private Secretary of the Education Minister (Secondary), Lucknow in which he stated that the selection was made against three vacant posts by the management of the College after obtaining permission on 1.2.1996 from DIGS. The matter of approval was referred to DDE who sought some clarifications vide his letter dated 2.8.1996 and 14.10.1996 which were replied by the management vide letter dated 23.3.1997. He also mentioned the factum of pendency of writ petition No. 29208 of 1996 before this Court and that the opinion was sought from Chief Standing Counsel, High Court, Allahabad who informed that no order has been passed by the Court and, therefore, the matter may be disposed of by his office. Thereafter, the DIGS sought concurrence of the Finance and Accounts Officer vide letter dated 27.5.1997 which was granted on 20.6.1997. He further pointed out that the approval ought to have been granted within one month as per law but the DDE retained the papers without granting any approval. It further stated that in respect to the reservation the management has given an undertaking that in future as and when vacancies will occur the same will be filled in by applying the reservation. Thereafter, it appears that the Special Secretary, U.P. Lucknow sent a letter dated 16.12.1992 directing the DIGS to proceed in accordance with law and inform the Government with the action taken by him. The DDE also issued a consequential letter dated 26.12.1997 directing the DIGS to act in accordance with law and inform the State Government. The State Government again sought action taken report from Deputy Inspector of Schools vide its letter dated 19.2.1998 and, thereafter, the DIGS (Secondary) Kanpur Nagar, Kanpur vide its order dated 10.2.2000 granted approval to the appointment of Smt. Madhuri Bajpai, Smt. Smit Tiwari and Smt. Sashi Bhadauriya. The management, subsequently, promoted the petitioner Smit Tiwari (second set) in L.T. Grade on 1.7.2003 treating her to be qualified for the said post having completed 5 years of continuous service counting her service from 1.2.1996 and sought approval of the said promotion from DIGS, who granted the same vide order dated 8.8.2003 with effect from 1.7.2003. However, on the complaint made to the Joint Director of Education, he got the matter enquired and found that the promotion of the petitioner (second set) was not valid inasmuch she was appointed on regular basis in 2000 only vide appointment letter dated 24.1.2000, which was approved by DIGS on 10.2.2000. Therefore, promotion in L.T. Grade was not valid and he cancelled the same vide order dated 15.7.2004 pursuant whereto the consequential order was passed by DIOS Kanpur Nagar, Kanpur on 6.8.2004 whereagainst the petitioner (second set) has filed the writ petition.
7. In the former writ petition, counter affidavit has been filed by DIOS supporting the order dated 14.10.1996 passed by the DDE and it has been specifically pleaded that the appointment of the petitioners (first set) is neither in accordance with the procedure prescribed in law nor the aforesaid appointment is otherwise legal and, therefore, the petitioners (first set) are not entitled for payment of salary from the state exchequer but the Manager of the College may pay their salary if has taken work from the petitioners (first set) from its own resources.
8. Another counter affidavit has been filed by one Madhuri Gautam, who was allowed to be impleaded as respondent No. 4, she has opposed the writ petition stating that she is a reserved category candidate and pursuant to the aforesaid advertisement, she submitted an application on 11.1.1996 but the management did not consider her application at all and selected the candidates who were relatives of the Manager of the Institution inasmuch Smt. Madhuri Devi and her husband Sri Arvind Kumar Bajpai were also members of the governing body of the institution and without disclosing all these facts to the educational authorities, the appointments were made in a wholly arbitrary and illegal manner by adopting pick and choose. She has also stated that as a matter of fact, there was only one post in BTC Grade lying vacant due to retirement of Smt. Priyambada Tiwari and rest two vacancies were illegally assumed by the management inasmuch there were two L.T. Grade teachers who were promoted from C.T. Grade and working without sanctioned strength. Yet the management treating C.T. Grade teachers as promoted in L.T. Grade assumed the said vacancies in BTC grade and sought to appoint more teachers ignoring the fact that two appointments in L.T. Grade were found beyond sanctioned strength and, therefore, these persons, who were promoted in L.T. Grade were liable to be treated working in C.T. Grade meaning thereby there was only one vacancy in BTC Grade.
9. In the rejoinder affidavit filed by the petitioners (first set) it is alleged that the DDE has no jurisdiction to pass the order dated 14.10.1996 and the selection was made after due procedure of law inasmuch news paper 'Dainik Gatha' is a widely circulated news paper recognized by the State Government and, therefore, it cannot be said that the advertisement for the vacancies was not made in a proper manner. In the rejoinder affidavit, in reply to the counter affidavit of the respondent No. 1 it has been stated that subsequently the Finance and Accounts Officer has granted sanction for three posts on 28.6.1997.
10. In the second writ petition, counter affidavit has been filed on behalf of the DIOS stating that the appointment of the petitioner (second set) was approved by DIOS on 10.2.2000 and, therefore, considering her appointment valid from the said date, she has not completed 5 years of continuous service and therefore, rightly been disapproved by the Joint Director of Education.
11. The committee of management has filed his counter affidavit wherein it has supported the case of petitioner (second set).
12. Smt. Madhuri Bajpai, who is also petitioner No. 1 in writ petition No. 29208 of 1996, was allowed to be impleaded as respondent No. 7 in the second writ petition and she has filed her counter affidavit claiming that she is senior to the petitioner (second set) in ETC Grade inasmuch though the appointment letter was issued in favour of Smt. Madhuri Devi, Smt. Archana Saxena and Smt. Smit Tiwari on 27.1.1996, but thereafter it appears that the committee of management sought permission from DIOS to fill up three vacancies in primary section in ETC Grade vide letter dated 30.9.1999 and after obtaining financial approval from Finance and Accounts Officer, the DIOS permitted the management to hold selection after advertising vacancies by his order dated 1.1.2000. Thereafter, the vacancies were advertised in daily news paper 'Amar Ujala' pursuant whereto Smt. Madhuri Bajpai, Smit Tiwari and Smt. Shashi Bhadauria were selected and appointment letters were issued on 24.1.2000. The papers were received in the office of DIOS on 24.1.2000 who granted approval by order dated 10.2.2000, a copy whereof has been filed as Annexure-1 to the writ petition. Since petitioner (second set) and Madhuri Bajpai both were appointed on the same date, the date of birth of Smt. Madhuri Bajpai being 12.5.1968 and the petitioner (second set) being 24.1.1971, it is claimed that the respondent No. 7 Madhuri Bajpai is senior to the petitioner (second set) and, hence, she was entitled for appointment to the post of Assistant Teacher L.T. Grade when the vacancy occurred on 30.6.2003 but ignoring her seniority, the management illegally promoted the petitioner (second set) with effect from 1.7.2003, which after enquiry has rightly been found to be illegal and cancelled by the Joint Director of Education vide order impugned in the writ petition and, therefore, it does not warrant interference.
13. The rejoinder affidavit to the aforesaid two counter affidavits have been filed. The factum of advertisement of two vacancies of BTC Grade in 2000 and fresh appointment made on 24.1.2000 have not been disputed in para 9 and 10 of the rejoinder affidavit filed in reply to the counter affidavit of respondent No. 7 but the petitioner (second set) has stated in the rejoinder affidavit that there was no reason to hold a fresh selection and to issue a fresh appointment letter and that would not have any effect over the factum that the petitioner was already appointed and working pursuant to her appointment letter dated 27.1.1996.
14. Sri Ashok Khare, Senior Advocate assisted by Sri Sunil Kumar Srivastava in the writ petition filed by the petitioner (second set) fairly submitted that in case, the first writ petition filed by the petitioners (first set) is allowed, the second writ petition would also follow the same fate and, therefore, he submitted that the fate of first writ petition is of utmost importance to be considered first. In the alternative he submitted that in case, the first writ petition fails, even thereafter the petitioner having been appointed on 27.1.1996 and has experience of working as BTC grade teacher since then is entitled to count the aforesaid experience for the purpose of promotion in L.T. Grade and the official respondents erred in law by ignoring the aforesaid experience while considering whether the petitioner (second set) has worked for 5 years continuously in BTC Grade or not.
15. Sri Amit Saxena, learned Counsel who has appeared for petitioners (first set) has submitted that the appointment of the petitioners (first set) was made in accordance with rules and in particular regulation 17 of Chapter 2 of the Regulations framed under 1921 Act and the respondents, therefore, erred in law by not granting any approval to the said appointment. He further submitted that since the approval was not declined within one month from the date of receipt of the papers by the competent authority, therefore, it would be deemed to have been granted and the petitioners are entitled for salary from the State exchequer under 1971 Act from the date of their appointment in 1996.
16. Sri R.K. Jain, senior Advocate, assisted by Sri Rahul Jain has appeared for respondent No. 7 in the writ petition No. 40743 of 2004 and has submitted that the petitioner and respondent No. 7 having been appointed in 2000 pursuant to the fresh advertisement, which was duly accepted by all the parties and, therefore she has no right to claim any benefit of her appointment in 1996.
17. The learned standing counsel supporting the stand taking in the counter affidavit filed in both the writ petitions reiterated what has already been stated in the said counter affidavit.
18. Having heard learned Counsel for the parties and perusing the record and relevant statute relied upon by the learned Counsel for the parties in support of their respective claim, in my view, it would be appropriate to consider first, whether the petitioners (first set) are entitled for payment of salary under 1971 Act with effect from 1996. The parties are in agreement that for the purpose of appointment, qualification, and procedure for appointment, the provisions prescribed under Chapter-2 of the Regulations framed under 1921 Act would apply to the case in hand.
19. Regulation 1 Chapter-2 provides for minimum qualification for appointment of teachers in a recognized institution as under:
1. The minimum qualifications for appointment as Head of Institution and Teachers in any recognised institution, whether by direct recruitment or otherwise, shall be as given in Appendix A.
20. Appendix-A prescribes qualification for teachers of primary section attached with a secondary institution as under:
Essential qualifications
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Sr. Name of the Educational Training Age Desirable No. Post Experience qualifications
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(1) Teachers for Intermediate Examination
junior classes (6, and C.T., B.T.C. or J.T.C.
7 and 8) or any other
Equivalent training
eligibility
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(2) Teachers for High School and J.T.C. or
Primary Sections B.T.C. or H.T.C. or any
(Classes 1-5), if equivalent eligibility
affiliated with
girls institution
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21. The procedure for filling up the post has been prescribed under Regulation 17 and for the purpose of the present writ petition, Clause (a) & (g) which have been relied upon by the learned Counsels for the parties and relevant for the present writ petition reads as under:
17. The procedure for filling up the vacancy of the head of institution and teachers by direct recruitment in any recognised institution referred to in Section 16-FF shall be as follows:
(a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shall be advertised by the manager of the institution in at least one Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e. whether temporary/permanent) and number of vacancies, descriptions of post (i.e. Principal or Headmaster, Lecturer or L.T., C.T. or J.T.C./B.T.C. grade teacher including the subject or subjects in which the lecturer or teacher is required), scale of pay and other allowances, experience required, minimum qualification and age prescribed, if any, for the post and prescribing a date which should not ordinarily be less than two weeks from the date of advertisement by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned.
(g) Chairman of the Selection Committee after conducting interview of all the candidates for any post will get a note prepared in two copies on the proceedings of the selection which will mention the names of the selected candidates and names of two more candidates of waiting list. Chairman and other members of Selection Committee will sign on notes, so prepared, and mention their full name, designation and address. Chairman would immediately forward a copy of this note and a copy of statement referred to in Clause (f) of Regulation 10 to the Regional Dy. Director or the Inspector, as the case may be, for approval as-required under Section 1&-FF. Regional Dy. Director or Inspector, as the case may be, within one month of the date of receipt of concerned records, will give his decision thereon and failing to do so, it will be deemed to be approved.
22. Though the petitioners (first set) have not disclosed their qualification at the time of selection in 1996 but the order dated 10.2.2000 passed by the DIOS annexed as Annexure-6 to the writ petition No. 40743 of 2004 shows that the educational qualification of Smt. Madhuri Bajpai is B.A., B.Ed, and that of Smt. Smit Tiwari is B.Sc., L.T. None of them, therefore, possesses the essential qualification as prescribed in Appendix-A Chpater-2 of the regulations namely JTC, BTC or HTC or any equal eligibility training qualification. It has not been brought before the Court that the B.Ed. or L.T. qualification is equivalent to JTC, BTC or LTC. On the contrary, the Apex Court in the case of P.M. Latha and Anr. v. State of Kerala and Ors. , and Yogesh Kumar and Ors. v. Government of N.T.C. Delhi and Ors. has held that BTC qualification, which is a special training qualification for teaching the students of primary section is different than B.Ed. and L.T., which is a training qualification of the students of higher classes. The same view was taken earlier by this Court also in Mahendra Nath Misra v. State of U.P. 1996 (2) ESC 312 and B.Ed. Berozgar Sangh v. State of U.P. and Ors. 1997 (3) UPLBEC 1774 (para-8, 11 and 12) and Writ Petition No. 28243 of 1996, Nirmal Chand Misra v. State of U.P. decided on 29.10.1996. Therefore, ex facie, from the record, it is evident that the petitioners did not fulfill the essential qualification. Moreover, regulation 17(a) requires that the vacancies shall be advertised at least in one Hindi and one English news paper having adequate circulation in the State. In the case in hand, the management said to have advertised the vacancies in two news papers namely 'Dainik Gatha' and 'Amogh', which are local news papers published from the kanpur Nagar itself and there is nothing on record to shows that the said news papers have a wide circulation in the State. The DDE has also recorded a finding of fact that the said advertisement did not fulfill the requirement of Law under regulation 17(a) Chapter 2 of the Regulations and this finding of fact need no interference particularly since the petitioners (first set) have not brought anything on record to demonstrate that the said finding is perverse and no person of ordinary prudence can come to the said conclusion on the basis of material on record. Moreover, regulation 17(a) provides that the management while sending the proposal of selection to the competent authority shall sent the names of the selected candidates as also names of two more candidates of waiting list and, therefore, the Regional Deputy Director or Inspector as the case may be within one month from the date of receipt of papers will give decision thereon; failing which, it would be deemed to be approved. In the case in hand, the competent authority was Regional Inspectress of Schools since the College in question was a girls College. Admittedly, by G.O. dated 9.4.1992 the post of RIGS was re-designated as DIOS (Second) and at Kanpur the work of DIOS (Second) in 1996 was being looked after by the DDE. The management was supposed to submit papers in the office of DDE only thereafter question of deemed approval, if the decision is not taken within one month under regulation 17(g) of the Regulations framed under 1921 Act would have arisen but, admittedly, the documents were submitted in the office of DIOS Kanpur on 1.2.1996, who has no authority on the said date either to pass any order or even to submit any comment on the said date. It is said that by G.O. dated 12.6.1996, the post of DDE (Regional) was changed to the DDE (Madhyamik) but it is also true that the work of DIOS (second) at Kanpur continued to be looked after by the DDE (Madhyamik). The DIOS, Kanpur accordingly sent all the papers to the DDE vide his letter dated 7.6.1996. The documents were not complete and, therefore, the DDE vide letter dated 28.8.1996 sought clarification from the management of the College which was replied by the management on 28.9.1996. Thereafter, the DDE by order dated 14.10.1996 communicated his decision declining approval. Thus the decision was communicated within one month. The question of deemed approval under regulation 17(g) Chpater-2 would be attracted only when all the documents and information as contemplated therein is made available to the competent authority and not a mere submission of some documents before any authority, even if it is not competent to take any decision. In my view, therefore, there is no question of application of deemed approval in the case in hand. Further, there is no averment made by the committee of management that after having a deemed approval under regulation 17(g) it issued appointment letter to the petitioners (first set) but on the contrary, it issued the appointment letters on 27.1.1996 itself. Thus the procedure laid down under regulation 17 and 18 of Chapter-2 of the Regulations has not at all been followed. The illegality in the appointment made in 1996, it appears to have been admitted and accepted by the parties concerned, inasmuch the committee of management, thereafter sought approval of DIOS for making appointment against the aforesaid three vacancies in 1999 again by letter dated 30.9.1999, which was granted by DIOS vide order dated 1.1.2000, a copy whereof has been filed as Annexure CA-8 to the counter affidavit of respondent No. 7 in the writ petition No. 40743 of 2004. Thereafter, the vacancies were advertised in daily news paper 'Amar Ujala' and the selection was held afresh in the year 2000 and the appointment letters were issued to the petitioners Smt. Smit Tiwari and Madhuri Devi Bajpai on 24.1.2000. The third petitioner (first set), namely, Smt. Archana Saxena has not been selected and appointed in the aforesaid selection. This selection has not at all been challenged. In these circumstances, it cannot be said that the alleged selection made in 1996 of the petitioners (first set) was valid entitling them issuance of a writ of mandamus commanding respondents to pay salary to the petitioners (first set) with effect from 1.2.1996. The writ petition No. 29208 of 1996, therefore lacks merit and is liable to be dismissed.
23. Now coming to the second petition, since this Court has already held that the selection and appointment claimed to have been made in 1996 was illegal and contrary to law, no benefit c an be claimed on the basis of the said selection and appointment made in 1996. In this view of the matter, the petitioner (second set) cannot claim any right treating her as regularly working on the post of Assistant Teacher since 1996. After failing to claim any benefit since 1996, the natural consequences that the appointment of the petitioner (second set) bogged down to year 2000, when she was appointed vide order dated 24.1.2000 treating her appointment from that date and onwards it cannot be said that in the year 2003, she fulfilled the requisite qualification for promotion in L.T. Grade for which incumbent must have worked for at least five years continuously in the lower post and thus her promotion in L.T. Grade is not in accordance with law. Thus, I do not find any reason to interfere with the order passed by the Joint Director of Education cancelling the promotion of the petitioner (second set) on the post of Assistant Teacher L.T. grade.
24. Though, I have noticed that the petitioners Smit Tiwari as well as Madhuri Devi Bajpai do not fulfill the requisite qualification for appointment to the post of BTC Grade in accordance with Appendix A Chapter 2 of the Regulations framed under 1921 Act but since the selection made in 2000 pursuant whereto the aforesaid petitioners were appointed by appointment letters dated 24.1.2000 is not under challenge before this Court and moreover the third teacher, namely, Smt. Sashi Bhadauria, who was also selected therein is not a party before this Court, this judgment by itself shall not result in nullifying the selection and appointment of these persons made in 2000 on the post of Assistant Teacher (BTC Grade) but it is open to the educational authorities to look into the matter and find out whether the aforesaid appointments are in accordance with law and take necessary action, in case, it is found that the aforesaid appointments were made of the persons, who lack requisite minimum qualifications and in case, it is found that unqualified persons were appointed, necessary enquiry would also be held against the concerned educational authorities, who accorded approval without even looking into this requirement of law to find out whether such lapse was intentional/deliberate, and in case it is found that the said lapse was intentional, necessary financial recovery of the lose of government revenue on account of the payment of salary to the concerned persons shall be made from such guilty persons besides taking suitable disciplinary action in accordance with the law.
25. In view of the aforesaid discussions, both the writ petitions lacks merit and are dismissed without there being any order as to costs.
26. A copy of this order shall be communicated to the Secretary Education (Secondary) U. P. Lucknow and Director of Education (Secondary) U.P. Allahabad to take action as directed above who shall communicate the result of such inquiry within 6 months from the date of communication of this order though Registrar General of this Court.