Allahabad High Court
State Of U.P.Thru Prin.Secy.Madhyamik ... vs Anurag Gupta And Anr. on 5 May, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Judgment reserved on 19-04-2022 Judgment delivered on 05-05-2022 Case :- SPECIAL APPEAL DEFECTIVE No. - 120 of 2021 Appellant :- State of U.P.Thru Prin.Secy.Madhyamik Shiksha Vibhag and Ors. Respondent :- Anurag Gupta And Anr. Counsel for Appellant :- Atul Kumar Yadav Counsel for Respondent:- Ashwani Kumar,Rajendra Singh Kushwaha Hon'ble Devendra Kumar Upadhyaya, J.
Hon'ble Subhash Vidyarthi, J.
(Per Hon'ble Subhash Vidyarthi, J.) Order On C. M. Application No. 44248 of 2021
1. Heard Shri Atul Kumar Yadav, learned Standing Counsel for the appellants and Shri Ashwani Kumar, learned counsel for the respondents and perused the record.
2. This application has been filed by the State Appellant seeking Condonation of delay of 54 days in filing the Special Appeal. Having gone through the affidavit filed in support of the Application, we find that the cause shown for the delay in filing the Special Appeal is sufficient and the delay in filing the Appeal deserves to be condoned.
3. Accordingly, the application for condonation of delay is allowed and the delay in filing the Special Appeal is condoned.
Order On Special Appeal
1. Heard Shri Atul Kumar Yadav, learned Standing Counsel for the appellants and Shri Ashwani Kumar, learned counsel for the respondents and perused the record.
2. The instant Intra Court Appeal has been filed by the State authorities against the judgment and order dated 25-11-2020 passed by a learned Single Judge of this Court allowing Writ Petition No. 31660 (S/S) of 2019, which was filed by the respondent no. 1 challenging on order dated 06-09-2019 passed by the District Inspector of Schools, Lakhimpur Kheri (who shall hereinafter be referred to as "the D.I.O.S."), rejecting the petitioner's representation to include his name in the list of teachers of the college for taking it on State Government's Grant-in-aid and consequently pay him salary from the State exchequer.
3. Briefly stated, the facts of the case are that the respondent no. 1 had filed the Writ Petition pleading that he holds the qualifications of Bachelor of Arts alongwith Intermediate Grade Drawing Examination of Bombay and being fully eligible for being appointed on the post of Assistant Teacher (Art), he had applied against a post of Assistant Teacher (Art) advertised by Sri. Hanumant Intermediate College, Lakhimpur-Kheri (the respondent no. 2 in the Appeal, which shall hereinafter be referred to as ''the college'). Vide order dated 10-10-1999, the Manager of the college had appointed the petitioner on the aforesaid post on a temporary basis and the petitioner joined his duties on 11-10-1999. The petitioner has alleged that the Manager of the college became annoyed with him and did not allow him to perform his duties for the period from 22-11-2000 till 14-07-2001 and being perturbed, humiliated and victimized, coupled with mental tension and depression, the petitioner fell seriously ill and on 22-11-2000 itself, he gave an application for grant of leave to the Principal of the college. Although the petitioner has alleged that he was required to furnish a compromise that he will not claim salary for the aforesaid period, the document alleged to be a compromise is a letter dated 14-07-2001 written by the petitioner to the D.I.O.S. stating that he had not performed teaching duties in the college between the period 22-11-2000 to 14-07-2001 and, therefore, he will not claim the salary and allowances etc. for the aforesaid period. A copy of this letter was endorsed to the Manager of the college also. Thereafter the petitioner was allowed to perform his duties with effect from 21-07-2001.
4. The petitioner has stated that the process for taking the college on the Grant-in-aid list was started by the college in the year 1998 and at that time, a list of the staff working in the college was sent to the State Government. As the petitioner was not working at that time, his name was not there in the list. As per the petitioner, in August 2000 the manager of the college had sent another list of members of staff to the D.I.O.S., in which the petitioner's name was there and also that on 16-01-2001, the D.I.O.S. sought some information from the college and the Manager was directed to send the names of the staff members who were working in the college at that time and in the list sent by the Manager in response to the said letter also, the petitioners name was included. However, the petitioner's name was not included in the list of teachers sent by the Manager of the college to the D.I.O.S. for taking the college on Grant-in-aid list.
5. The petitioner has further stated that by means of an order dated 23-02-2005 issued by the Government, the college was taken on the Grant-in-aid list, without including the petitioner's name as a teacher of the college and the post of Principal and one post of Assistant Teacher were shown to be vacant and that on 05-04-2005, the Manager of the college gave an application to the Director, Education (Secondary) stating that no post is vacant in the college and on the post of Principal Sri. Krishna Kant Verma was working and the petitioner was working on the post of Assistant Teacher with effect from 10-10-1999, i.e. since before 01-01-2004, the date on which the college was taken on Grant-in-aid list.
6. On 06-09-2019 the D.I.O.S. passed an order disposing off the petitioner's representation in furtherance of an order dated 31-07-2019 passed by this Court in Writ Petition No. 3386 (S/S) of 2005. The order dated 06-09-2019 states the college was taken on Grant-in-aid list by means of an order dated 23-02-2005, with effect from 01-01-2004. The order dated 06-09-2019 further mentions that initially, the college had applied in the year 1998 for taking it on Grant-in-aid list, sending the particulars of 01 Principal, 07 teachers, 01 clerk and 03 non-teaching staff; that at that time, the petitioner was not working in the college and, therefore, his name could not be included in the list; that the petitioner was appointed by the management on 10-10-1999 and he worked in the college from the period 11-10-1999 to 21-11-2000; that at that time the college was unaided and the petitioner left on 21-11-2000 without any information and, therefore, his name was again not there in the list of Principal/teachers/non-teaching staff (total 18 persons) submitted by the college in the year 2001 in response to information sought by the department. The aforesaid further mentions that on 14-07-2001, the petitioner wrote a letter to the D.I.O.S. stating that he had not performed teaching duties in the college between the period 22-11-2000 to 14-07-2001 and, therefore, he will not claim the salary and allowances etc. for the aforesaid period. It also states that thereafter the petitioner was allowed to perform his duties with effect from 21-07-2001, and that as per the Government's directions, the Director of Secondary Education provided the details of the posts as per the information provided by the college in the year 2000-2001, to the Government through his letter dated 25-09-2004; that on 04-10-2004, the management had submitted an undertaking and in paragraph 3 thereof, it was categorically stated that the petitioner and one Ram Naresh have been appointed on the post of Assistant Teachers in Art and Science respectively and in case the aforesaid two persons were not taken on Grant-in-aid list, the college/management will bear their expenses from its own sources. The D.I.O.S. in this order dated 06-09-2019 recites that the list of staff members submitted by the college for the first time alongwith the application and the list submitted in October 2001 was valid and the list submitted afterwards including the petitioner's name was not valid.
7. The order dated 06-09-2019 further states that the college was taken on Grant-in-aid list by means of a Government Order dated 23-02-2005, with effect from 01-01-2004, without including the petitioner as a teacher of the college, as his name was not there in the original list; that on 05-04-2005, the Manager of the college wrote a letter to the Director of Education (Secondary) stating that no post was vacant in the college and requesting that the names of Sri. Krishna Kant Verma and the petitioner, who were not working at the time of the application, be included by making amendment in the original list. The order dated 06-09-2019 also discloses that thereafter, the petitioner filed Writ Petition No. 3386 (S/S) of 2005 and in furtherance of the order dated 31-07-2019 passed in the Writ Petition he submitted a representation on 07-08-2019 and that after submitting the representation, the petitioner submitted copies of his experience certificate, character certificate, letter issued by the Board appointing him for evaluation of answer-sheets of Board examinations along with a letter dated 17-08-2019, but these could not justify his claim for being included in the list of staff members of the college, as the petitioner was not working in the college at the time when the application for taking the college on the Grant-in-aid list was submitted. The order thus provided that in case the management is taking work from the petitioner, it has to pay his salary from its own resources. Accordingly, the D.I.O.S. rejected the petitioner's representation.
8. The D.I.O.S. filed a counter affidavit in the Writ Petition before the learned Single Judge stating that the college is a recognized aided college up to High School level and is recognized unaided at the Intermediate level. It was also averred in the counter affidavit that by means of a letter dated 19-12-1985, the Madhyamik Shiksha Parishad had granted recognition to the college for High School Examination with effect from the year 1987 and in the year 1998, the management of the college applied for taking the college on grant-in-aid, indicating in the Management Return list, names of the Principal, 07 teachers, 01 clerk and 03 class IV employees, and that the petitioner's name was not there in the said list. It was also stated in the counter affidavit that the petitioner was appointed on 10-10-1999 and he joined on 11-10-1999, that he stopped attending to his duties with effect from 21-11-2020 without any information or any sanctioned leave, that thereafter, in the Management Return submitted in the year 2000-2001 furnished in response to information sought in furtherance of the application submitted in the year 1998 for bringing the college on Grant-in-aid also, the petitioner's name did not find place. Respondents in the Writ Petition also responded by stating that by means of a letter dated 25-09-2004, the Director Secondary Education forwarded the Management Return list to the State Government alongwith the details as per the information provided by the college in the year 2000-2001 and the State Government returned the matter for removal of certain short-comings and it required the recommendations alongwith the undertaking. A copy of the undertaking furnished by the Manager of the college on affidavit dated 04-10-2003 was annexed alongwith the counter affidavit and it stated that the following persons were working in the college as per the standard: -
Sl.No. Name Post Date since working 1 Vacant Principal
---
2 Sri. Ram Adhar Pandey Asstt. Teacher 01-07-1974 3 Sri. Krishna Kant Verma Asstt. Teacher 01-07-1974 4 Sri. Suresh Chandra Verma Asstt. Teacher 12-09-1978 5 Sri. Radhey Shyam Rathore Asstt. Teacher 17-07-1981 6 Sri. Rama Kant Tiwari Asstt. Teacher 31-07-1994 7 Sri. Maheep Singh Asstt. Teacher 04-01-1999 8 Sri. Rajeev Kumar Asstt. Teacher 10-10-1999 9 Sri. Vinod Kumar Mishra Clerk 01-08-1994 10 Sri. Hem Chandra Peon 07-07-1985 11 Sri. Ramadhar Peon 01-07-1988 12 Sri. Shaukeen Peon 01-06-1994 13 Sri. Ved Ram Peon 30-10-1997 14 Sri. Rajneesh Kumar Peon 10-10-1999
9. The aforesaid undertaking given by the manager of the college on affidavit further stated that Sri. Ramadhar Pandey mentioned at serial no. 2 of the list has retired on 30-06-2003 on attaining the age of superannuation and that the persons mentioned in the aforesaid list have to be taken on the Grant-in-aid list. It further recites that two posts had fallen vacant due to the death of Sri. Tej Ram Verma, the Principal and retirement of Sri. Ramadhar Pandey and in order to run the teaching work properly, the petitioner Anurag Gupta had been appointed as Assistant Teacher (Art) and Sri. Ram Naresh had been appointed as Assistant Teacher (Science). The undertaking also mentions that in case the aforesaid two teachers were not taken on Grant-in-aid list, the college will bear the expenses of their salary from its own resources.
10. It was stated in the Counter Affidavit that since the petitioner's name was not there in the approved list, therefore, his representation for including his name in the list was rejected by means of the order dated 06-09-2019.
11. The learned Single Judge allowed the Writ Petition by means of the judgment dated 24-11-2020 holding that the petitioner's appointment since 1999 is not disputed. Learned Single Judge further records in the judgment under appeal that the college had been brought on Grant-in-aid list after submission of the documents in the year 2004, in which the petitioner's name was included; that the fact of the petitioner having worked or not during the period 02-11-2000 to 20-11-2001 has no bearing on the merit of the case; that the petitioner's name finds place in the affidavit of the manager filed in the year 2004 - which is the basis upon which the college has been included in the grant-in-aid list, as he had been appointed against a sanctioned post which had fallen vacant on the demise of the Principal and retirement of a teacher. The learned Single Judge held that the reason assigned by the D.I.O.S. for excluding the petitioner's name was unsustainable. Learned Single Judge has expressed his opinion that the D.I.O.S. could have dropped the name of a teacher only if he found that the teacher had not been duly and legally appointed in the year 2004. The learned Single Judge further held that the undertaking given by the manager in the affidavit dated 04-10-2004 would not take away the petitioner's right to get salary from the State exchequer.
12. Feeling aggrieved against the aforesaid judgment and order dated 25-11-2020 passed by the learned Single Judge, the State authorities have filed the instant Intra-Court Appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules mainly on the Ground that only those employees are entitled to receive salary from the State Exchequer, whose names were mentioned in the Government Order dated 23-02-2005 whereby the college was brought on Grant-in-aid list; that the petitioner's name was not there and he has not assailed the validity of the aforesaid Government Order dated 23-02-2005 and that the D.I.O.S. has no authority to make payment of salary to any employee whose name is not there in the Grant-in-aid list.
13. On the direction of the Court, the learned Standing Counsel has produced the original record of the office of the District Inspector of Schools, Lakhimpur Kheri as also of the State Government and we have perused the same.
14. We find that on 11-02-1998, a Government Order was issued in supersession of the earlier Government Orders on the subject, for taking recognized non-Government Higher Secondary Schools on the Grant-in-aid list on the terms and conditions mentioned in the Government Order. One of the conditions mentioned in the Government Order is that the college should give an application on the format given in the Government Order. The format of the application requires the details of the staff working in the college to be furnished. Accordingly, the college submitted an application on 19-09-1998 and the a list of teachers and non-teaching staff of the college was provided alongwith the application, and the petitioner's name was not there in this list of teachers and the members of non-teaching staff of the college.
15. After initiation of the process for taking the college on the Grant-in-aid list, on 12-09-1999 the college issued an advertisement inviting applications for appointment on three posts of Assistant Teachers - one each in Art, Science and P.T. On 10-10-1999, the manager appointed the petitioner in furtherance of the aforesaid advertisement and the petitioner joined on 11-10-1999.
16. On 28-02-1990, a Government Order was issued whereby it was provided that the teachers to be appointed in L.T. / Lecturer Grade for the subjects Art, P.T., Language, Home Science, Craft, Music, Triple languages, Painting, Typing and Short-hand must possess the eligibility qualification in the subject concerned and Graduate/Post Graduate degree respectively. Although the petitioner is said to have been appointed on 10-10-1999, the record reveals that he acquired the eligibility qualification of Intermediate with Technical Art (Drawing Technical) from U. P. Intermediate Education Board as a private candidate on 12-07-2000, from the college in which he claims to be have been teaching since 11-10-1999. Strangely, although the petitioner's marks-sheet of Intermediate bears the date 12-07-2000, a certificate of having passed Intermediate in drawing has been issued to him on 24-06-2000, i.e., prior to issuance of the marks sheet. The petitioner passed B.A. Part III examination from Chhatrapati Shahu Ji Maharaj University, Kanpur on 23-07-2000 as a private candidate.
17. The record further reveals that on 27-07-2000, the D.I.O.S. wrote a letter to the Manager of the college, asking him to submit a proposal to bring the college on Grant-in-aid list. In response to the aforesaid letter, the Manager of the college sent a letter dated 07-08-2000, furnishing the requisite information and this time, the following list of 18 persons was sent, which too did not contain the name of the petitioner: -
Sl.No. Name Post Date since working 1 Tej Ram Verma Principal 20-09-1980 2 Sri. Ram Adhar Pandey Asstt. Teacher 01-07-1974 3 Sri. Krishna Kant Verma Asstt. Teacher 01-07-1974 4 Sri. Suresh Chandra Verma Asstt. Teacher 12-09-1978 5 Sri. Radhey Shyam Rathore Asstt. Teacher 17-07-1981 6 Sri. Rama Kant Tiwari Asstt. Teacher 31-07-1994 7 Sri. Maheep Singh Asstt. Teacher 04-01-1999 8 Sri. Rajeev Kumar Asstt. Teacher 10-10-1999 9 Sri. Vinod Kumar Mishra Clerk 01-08-1994 10 Sri. Hem Chandra Peon 07-07-1985 11 Sri. Ramadhar Peon 01-07-1988 12 Sri. Shaukeen Peon 01-06-1994 13 Sri. Ved Ram Peon 30-10-1997 14 Sri. Rajneesh Kumar Peon 10-10-1999 15 Sri. Rajesh Kumar Peon 03-10-1999 16 Sri. Janardan Singh Peon 03-10-1999 17 Sri. Arvind Kumar Peon 03-10-1999 18 Sri. Sandeep Kumar Verma Peon 03-10-1999
18. On 21-12-2000, the Assistant Accounts Officer of the office of the D.I.O.S. wrote a letter to the D.I.O.S. stating that the number of member of staff in the college in question exceeds the standard strength and an enquiry in this regard needs to be conducted as per the Government Order.
19. On 11-01-2001, the D.I.O.S. sent a letter to the Regional Joint Director of Education, forwarding the papers of three colleges, including the college in question, for taking them on Grant-in-aid list and the papers of the college in question contained an undated list of staff members signed by the Principal and the Manager of the college, which was the same list of 18 persons, as was provided with the earlier letter dated 07-08-2000 and which did not contain the petitioner's name.
20. On 16-01-2001, the D.I.O.S. wrote another letter to the manager of the college requesting him to provide full particulars of the teachers and employees, the year of recognition, names of the teachers and the employees, date of joining, date of grant of approval and the name and designation of the authority who had granted the approval. Again, the college provided the same list of 18 persons under the joint signatures of the Principal and the Manager of the college, which did not contain the petitioner's name. On 24-04-2001, the D.I.O.S. forwarded the same list to the Joint Director, Education.
21. Again, the college provided a list of staff members prepared on 01-05-2001 under the joint signatures of the Principal and the Manager, which again contained the same information of 18 persons, as was provided earlier with the letter dated 07-08-2000, which did not include the petitioner's name. This information was forwarded by the D.I.O.S. to the Joint Director Education on 11-05-2001 and again on 18-07-2001.
22. The record further reveals that on 21-07-2001, the manager of the college wrote a letter to the petitioner, stating that in pursuance of the agreement dated 14-07-2001, he was being adjusted on the post of Assistant Teacher (Art) and was given "re-appointment" on the said post.
23. On 26-07-2001, the Joint Director wrote a letter to the D.I.O.S. stating that upon scrutiny of the papers submitted for providing Grant-in-aid, the certificate of renewal of the society and the documents relating to the land and building of the college were found wanting and he was directed to remove the objections. Again, on 30-07-2001 another letter was written by the authority asking the details of creation of posts and its approval. On 20-08-2001, the D.I.O.S. sent a reply providing the copies of certificate of renewal of the society, khatauni, valuation, secured fund, affidavit and undertaking and it stated that permission has been granted to run Class 9 but no documents were available regarding creation of the posts.
24. We gather from the record that although there is no letter no. 4989/2001-02 dated 06-10-2001 of the D.I.O.S. available on the original record and no such letter has been brought on record of the Writ Petition by any of the parties, on 20-10-2001 the Manager of the college gave a letter to the D.I.O.S. stating that in furtherance of the letter no. 4989/2001-02 dated 06-10-2001, he was submitting a list of the teachers / non-teaching staff of the college and the list was provided with this letter, which contained the petitioner's name for the first time.
Sl.No. Name Post Date since working 1 Sri. Ram Adhar Pandey Principal 01-07-1974 2 Sri. Krishna Kant Verma Asstt. Teacher 01-07-1974 3 Sri. Suresh Chandra Verma Asstt. Teacher 12-09-1978 4 Sri. Radhey Shyam Rathore Asstt. Teacher 17-07-1981 5 Sri. Rama Kant Tiwari Asstt. Teacher 31-07-1994 6 Sri. Maheep Singh Asstt. Teacher 04-01-1999 7 Sri. Rajeev Kumar Asstt. Teacher 10-10-1999 8 Anurag Gupta Asstt. Teacher 10-10-1999 9 Sri. Vinod Kumar Mishra Clerk 01-08-1994 10 Sri. Hem Chandra Peon 07-07-1985 11 Sri. Ramadhar Peon 01-07-1988 12 Sri. Shaukeen Peon 01-06-1994 13 Sri. Ved Ram Peon 30-10-1997 14 Sri. Rajneesh Kumar Peon 10-10-1999 15 Sri. Rajesh Kumar Peon 03-10-1999 16 Sri. Janardan Singh Peon 03-10-1999 17 Sri. Arvind Kumar Peon 03-10-1999 18 Sri. Sandeep Kumar Verma Peon 03-10-1999
25. The manager of the college gave a certificate stating that in case any teachers / non-teaching employees will be found to be in excess of the standard number of posts, the management will pay their salary from its own resources in case the college in taken on the Grant-in-aid list and the college will not make any demand of any grant from the Government for this purpose. On 31-05-2003 these papers were forwarded by the D.I.O.S. to the Joint Director Education.
26. On 17-07-2003, the Director of Secondary Education, U.P. forwarded the information of 29 colleges to the Government, and the information in regard to the college in question contained the names of teachers and other employees as per the list of 14 persons provided by the college earlier and it did not contain the petitioner's name.
On 25-09-2004, the Deputy Director wrote a letter to the D.I.O.S. with a direction to obtain an undertaking from the college on the basis of the information provided in the year 2000-2001. On 04-10-2004, the manager of the college gave an undertaking on an affidavit stating that the following persons are working in the college as per the standards: -
Sl.
Name Post Date since working 1 Vacant Principal
---
2 Sri. Ram Adhar Pandey Asstt. Teacher 01-07-1974 3 Sri. Krishna Kant Verma Asstt. Teacher 01-07-1974 4 Sri. Suresh Chandra Verma Asstt. Teacher 12-09-1978 5 Sri. Radhey Shyam Rathore Asstt. Teacher 17-07-1981 6 Sri. Rama Kant Tiwari Asstt. Teacher 31-07-1994 7 Sri. Maheep Singh Asstt. Teacher 04-01-1999 8 Sri. Rajeev Kumar Asstt. Teacher 10-10-1999 9 Sri. Vinod Kumar Mishra Clerk 01-08-1994 10 Sri. Hem Chandra Peon 07-07-1985 11 Sri. Ramadhar Peon 01-07-1988 12 Sri. Shaukeen Peon 01-06-1994 13 Sri. Ved Ram Peon 30-10-1997 14 Sri. Rajneesh Kumar Peon 10-10-1999
27. The undertaking on affidavit of the manager further states that Sri. Ramadhar Pandey mentioned at serial no. 2 of the list has retired on 30-06-2003 after attaining the age of superannuation. The persons mentioned in the aforesaid list have to be taken on Grant-in-aid list. Two posts have fallen vacant due to the death of Sri. Tej Ram Verma, the Principal and retirement of Sri. Ramadhar Pandey and in order to run the teaching work properly, the petitioner Anurag Gupta has been appointed as Assistant Teacher (Art) and Sri. Ram Naresh has been appointed as Assistant Teacher (Science). In case the aforesaid two teachers are not taken on Grant-in-aid list, the college will bear the expenses of their salary from its own resources.
28. Accordingly, on 23-02-2005, a Government Order was issued taking 09 colleges, on the grant-in-aid list, including the college in question and the enclosed list contains the names of in all 14 teachers and other employees of the college mentioned in the table given in para 26 above, which does not include the petitioner's name.
29. When we analyse the submissions made by learned counsel representing the respective parties in the wake of the record, we find that although the petitioner had approached this Court by categorically pleading in the writ petition that he holds the qualifications of "Bachelor of Arts alongwith Intermediate Grade Drawing Examination of Bombay" and being fully eligible for being appointed on the post of Assistant Teacher (Art), he was appointed on 10-10-1999 but the record reveals that he acquired the eligibility qualification of Intermediate with Technical Art (Drawing Technical) from U. P. Intermediate Education Board as a private candidate on 12-07-2000, from the college in which he claims to be teaching since 11-10-1999. Strangely, although the petitioner's marks-sheet of Intermediate bears the date 12-07-2000, a certificate of having passed Intermediate in drawing is said to have been issued to him on 24-06-2000, i.e., prior to issuance of the marks-sheet. The petitioner passed B.A. Part III examination from Chhatrapati Shahu Ji Maharaj University, Kanpur on 23-07-2000 as a private candidate. Therefore, on the date of his appointment, i.e. 10-10-1999, the petitioner did not possess any of the essential eligibility qualifications laid down by the Government Order dated 28-02-1990 and he, thus, appears to have given incorrect information regarding possessing eligibility qualification in the Writ Petition. As the petitioner did not possess the eligibility qualification on the date of his appointment to the post of Assistant Teacher (Art), his appointment was illegal.
30. The record further reveals that on 21-07-2001, the manager of the college had "adjusted and re-appointed" the petitioner on the post of Assistant Teacher (Art) in pursuance of some agreement dated 14-07-2001. Although the petitioner possessed the eligibility qualification on the said date, he was given re-appointment in pursuance of some agreement, without advertising the post and without obtaining the requisite sanction/approval from the authority concerned as required by law. Therefore, his re-appointment made on 21-07-2001 was also not in accordance with the law.
31. Although the petitioner has alleged that the Manager of the college became annoyed with him and did not allow him to perform his duties for the period from 22-11-2000 till 14-07-2001 and being perturbed, humiliated and victimized, coupled with mental tension and depression, the petitioner fell seriously ill, but at the same time he alleges that he had given an application for grant of leave to the Principal of the college and on 22-11-2000 itself and he stopped attending the college and, therefore, there was no occasion for the manager to continue to humiliate and victimize the petitioner after 22-11-2000 when the petitioner had stopped attending the college. Moreover, no complaint to this effect is found to have been made by the petitioner to any authority and this allegation appears to have been made for the first time in the Writ Petition.
32. Although the petitioner has alleged that he was required to furnish a compromise that he will not claim salary for the aforesaid period, the document alleged to be a compromise is a letter dated 14-07-2001 written by the petitioner to the D.I.O.S. stating that he had not performed teaching duties in the college between the period 22-11-2000 to 14-07-2001 and, therefore, he will not claim the salary and allowances etc. for the aforesaid period.
33. The petitioner's name was not there in the original list of teachers and other non-teaching staff provided by the college on 19-09-1998, and again on 07-08-2000, and also in the undated lists provided by the college which were forwarded alongwith the letters dated 11-01-2001 and 24-04-2001 written by the D.I.O.S., and also in the list dated 01-05-2001. His name appeared for the first time in a list provided by the Manager of the college alongwith a letter dated 20-10-2001 written to the D.I.O.S. purportedly in furtherance of some letter no. 4989/2001-02 dated 06-10-2001 written by the latter, although there is no such letter available on the original record or on the record of the Writ Petition or the Special Appeal. At the same time, the manager of the college gave a certificate that in case any teacher/non-teaching employee will be found to be in excess of the standard number of posts, the management will pay salary from its own resources in case the college is taken on the Grant-in-aid list and the college will not make any demand from the Government for any grant for this purpose.
34. On 04-10-2004, the manager of the college gave an undertaking on an affidavit stating that 14 persons named in the affidavit (whose particulars are mentioned in the table given in para 26 above) were working in the college as per the standards, which 14 persons did not include the petitioner, and further stating that two posts had fallen vacant due to the death of Sri. Tej Ram Verma, the Principal and retirement of Sri. Ramadhar Pandey and in order to run the teaching work properly, the petitioner Anurag Gupta had been appointed as Assistant Teacher (Art) and Sri. Ram Naresh had been appointed as Assistant Teacher (Science). In case the aforesaid two teachers are not taken on Grant-in-aid list, the college will bear the expenses of their salary from its own resources.
35. As per the aforesaid undertaking on affidavit available on the record produced by learned State Counsel, the manager of the college himself admitted that the petitioner was not amongst the teachers of the college working as per the standards.
36. Keeping in view all the aforesaid facts, more particularly the fact that the petitioner's appointment/re-appointment was not made in accordance with the law and the manager of the college had himself stated on oath before the State authorities that the petitioner was not included amongst the teachers working as per the standard, we are of a considered opinion that no direction could be issued to include the petitioner's name in the list of teachers of the college for bringing it on Grant-in-aid list and to pay his salary from the State Exchequer.
37. The facts disclosed and reasons given above are self revealing and thus, we are not in doubt that the appointment of the petitioner (respondent No. 1 in this Special Appeal) was not in accordance with law, not only for want of approval by the authority concerned, but also because at the time of his alleged appointment he was not fulfilling the essential minimum qualification for the post. The name of the petitioner is said to have been sent to the D.I.O.S. by the management pursuant to a non-existent letter dated 06-10-2001 and, as such, we also have no hesitation to hold that such uncalled for information said to have been submitted by the management of the college cannot be the basis of inclusion of his name amongst the teachers of the college, who are entitled to receive salary from the State exchequer on the college having been brought on Grant-in-aid list.
38. In the aforesaid view, we do not find ourselves in agreement with the judgment and order dated 25-11-2020 passed by the learned Single Judge, which is under appeal. The Special Appeal is thus allowed. The judgment and order dated 25-11-2020 passed by the learned Single Judge in Writ Petition No. 31660 (S/S) of 2019 is hereby set aside and the Writ Petition is dismissed.
39. However, there will be no order as to costs.
Order Date:- 05-05-2022 Jaswant