Allahabad High Court
Sri Raj Dev Yadav Son Of Sri Ram Palat ... vs Regional Deputy Director Of Education ... on 2 November, 2006
Author: Prakash Krishna
Bench: Prakash Krishna
JUDGMENT Prakash Krishna, J.
1. This is third round litigation in this Court. The petitioner and the respondent No. 5 are fighting against one another for a single post of Assistant Teacher in L.T. grade in the institution known as Shri Krishna Geeta Rashtriya Inter College which is governed by the provisions of U.P. Intermediate Education Act, U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971. On earlier two occasions the writ petitions were filed by Shri Chandra Bhan Singh, the respondent No. 5, mainly against the present petitioner namely Shri Raj Deo Yadav. This time, Shri Raj Deo Yadav, the petitioner has approached the Court by way of the above writ petition.
FIRST ROUND OF LITIGATION:
2. The respondent No. 5 Chandra Bhan Singh (hereinafter referred to as Singh) had filed writ petitions No. 14854 of 1992 and 11746 of 1993. In the writ petition No. 14854 of 1992 Shri Singh claimed for payment of salary in his favour on the ground that he is duly appointed Assistant Teacher in L.T. grade in the institution. In the subsequent writ petition No. 11746 of 1993, the present petitioner was impleaded as respondent No. 4 who had claimed that he has been duly appointed as Assistant Teacher, challenging his appointment. Shri Singh laid his claim on the allegations that he had been appointed on ad hoc basis on the post of Assistant Teacher in L.T. grade under the provisions contained in Section 18 of U.P. Secondary Education Services Commission and Selection Act, in pursuance of the resolution of Committee of Management dated 30.6.1991.
3. Both the writ petitions were heard together and were disposed of by a common judgment dated February, 19, 1996. Copy of the said judgment has been filed as Annexure -1 to the present writ petition and is also reported in 1996 (27) ALR 663. It was found therein that in view of the judgment of Full Bench in the case of Radha Raizada and Ors. v. Committee of Management 1994 (3) U.P. LBEC1551. the appointment of Shri Singh is vitiated as the procedure adopted by the Committee of Management for filling up the vacancy was not in accordance with law. No liability to pay salary to Shri Singh accrued on the State. However, certain observations were made in para 11 of the said judgment whereby It was provided that before releasing salary to Raj Deo Yadav, the present petitioner who was respondent No. 4 in writ petition No. 11746 of 1993, the validity of the appointment of respondent No. 4 shall be examined first, before releasing the salary.
4. Two special appeals were filed by Shri Singh against the aforesaid judgment of learned Single Judge.
SECOND ROUND OF LITIGATION.
5. The District Inspector of Schools in pursuance of the judgment dated 19th of February, 1996 delivered in the aforesaid two writ petitions considered the legality and validity of the appointment of the present petitioner in the College in question as also payment of salary to him. Surprisingly enough, the District Inspector of Schools by the order dated 16th of April, 1996 (Annexure -3 to the writ petition), without adjudicating the legality and validity of the appointment of the present petitioner, passed an order sanctioning the financial approval for appointment of salary to the petitioner on six conditions enumerated therein. This led to the second round of litigation at the instance of Shri Singh, who filed writ petition No. 18699 of 1996 in this Court against the aforesaid conditional order of the District Inspector of Schools. The writ petition was dismissed summarily on the ground that the impugned order was passed in pursuance of the judgment and order of this Court dated 19th of February, 1996 against which Special Appeals were already preferred. This order was also subject matter of special appeal before Division Bench being Special Appeal No. 573 of 1996.
6. All the three special appeals, two against the judgment dated 19th of February, 1996 and the third against the judgment dated 2nd of July, 1996 were clubbed and heard together and were disposed of by a common judgment dated 17th of July, 1996. The Special Appeal Court disposed of all the three appeals with certain observations to the effect that the District Inspector of Schools reconsider the question of accord of approval to respondent No. 3 therein (the petitioner in the present case) giving opportunity of hearing to the parties namely Shri Singh and the present petitioner and disposed of the matter by passing a reasoned order. A copy of the said order has been filed as Annexure -4 to the writ petition.
THIRD ROUND OF LITIGATION.
8. The District Inspector of Schools reconsidered the matter by the impugned order dated 5th of March, 1997. It was held that the Committee of Management had no right to select and appoint an Assistant Teacher after the commencement of Secondary Education Services Commission and as such no financial approval can be accorded for payment of salary to Shri Singh. It may be noted that the present petitioner was offered appointment by the Committee of Management on 30th of November, 1992 and he joined the post on 1.2.1993 and was paid salary but it was stopped subsequently in pursuance of the order passed in writ petition No. 386 of 1996. It has been found that the Committee of Management had no right to appoint the petitioner after 31st of August, 1991 in view of the letter of Director of Education being letter No. 31953/91-92 dated 31st of August, 1991. It has also been noted in the impugned order that the appointment was offered to Shri Singh by the letter dated 1st of July, 1991 and to the present petitioner subsequently. Ultimately, he concluded that both the appointments were made by the Committee of Management after the letter dated 31.8.1991 issued by the Director of Education banning the appointments in the educational institutions and the Committee of Management had no right to fill up any post, therefore, both the appointments are void and it is not possible to accord financial sanction to either of the appointments.
Arguments
9. Shri Ashok Khare, the learned Senior Counsel appearing on behalf of the petitioner submitted that although the petitioner was appointed during the ban imposed by the State Government banning the appointment in government aided educational institutions but the said ban on appointment was subsequently modified and in this view of the matter the irregularity, if any, committed in the appointment of the petitioner stands disappeared. In this connection he has referred the radiogram from the Secretary, Personnel Department, Government of U.P. dated 29.6.1991 whereby recruitment/appointment process for each category of posts in the Department of U.P. Government and Public Service Commission and High Court was stayed till the further orders. In pursuance of the aforesaid radiogram a government order dated 17th of July, 1991 was issued. According to him the said government order and the radiogram were not applicable to the government aided education institutions. In this connection he has placed reliance upon two unreported judgments; Smt. Neelam Aarawal v. State of U.P. Civil Misc. Wit Petition No. 35071 of 1991 decided on 11th of October, 1992 and Mahendra Pratap Sinah v. DIPS and Ors. Writ Petition No. nil of 1992 dated 16th of April. 1992. The learned Single Judge in the case of Mahendra Pratap Singh has relied upon the judgment of Kumari Prabhawati Dixit v. U.P. Madhvamik Shiksha Sewa Ayog and Ors. It was also contended that if the ban imposed by the State Government is found illegal, then the question of validity of the appointment of the petitioner cannot be gone into on other grounds as it would amount supplementing the impugned order. In other words, the District Inspector of Schools has not taken into account any other fact to hold that the appointment of the petitioner is illegal, it is no more open to this Court to examine the legality and validity of the appointment of the petitioner.
10. In contra, the learned standing counsel appearing on behalf of the respondents No. 1,2 and 3 and Shri Indraj Singh appearing on behalf of the respondent No. 5 submitted that the case of the petitioner is parallel to the case of Shri Singh and as such the petitioner is required to be treated in the manner as Shri Singh has been treated. In other words, the appointment of Shri Singh which is prior to the date of appointment of the petitioner is illegal and void in view of the decision of this Court In the case of Kumari Radha Raizada (supra), the appointment of the petitioner is also void and illegal for the same reasons.
Findings
11. I have given careful consideration the respective submissions of the learned Counsel for the parties. The following two questions fall for determination before this Court:
(1) Whether the selection of the petitioner after the commencement of ban period after 31.8.1991 is valid and what would be the effect of lifting of the ban upon the selection so made?
(2) Whether the order of the District Inspector of Schools for not considering the legality and validity of the appointment of the petitioner would ipso facto amount that the appointment of the petitioner, if the petitioner succeeds on the first question framed above, is valid?
Taking the first question first, the said issue is no longer res integra and has been set at rest by an authoritative pronouncement.
12. At the very outset it may be noted that the judgment of the learned Single Judge in Kumari Prabhawati Dixit case reported in (1992) 1 UPLBEC 582. holding the ban illegal, has not been approved by a Division Bench of this Court in Durgesh Kumari v. State of U.P. (1995) 3 UPLBEC 1387. The Division Bench has upheld the power of the State Government to invoke. Paragraph 8 of judgment reads as follows:
8. Let us now see whether the temporary ban order which is valid exercise of the State Government's power under Section 9(4) of the U.P. Intermediate Education Act, in any way can be said to have abrogated the provisions of the Services Commission Act. If one looks to the past history of the Intermediate Education Act, one would find that the entire procedure of making appointment/recruitment to the post of Principal, Lecturer and L. T. Grade teachers was provided in the Act and the Regulations framed thereunder. It is only later on that the Services Commission Act has been passed to provide the procedure for making selection to the aforesaid posts. In Dr. Ramji Dwivedi's case (supra) the ban order was issued by the State Government as it was contemplating to evolve procedure for making selection to the posts of Principal, Lecturer and L. T. Grade teachers. From the supplementary counter-affidavit and from the legislation which has been passed later on it is clear that the State Government was contemplating of changing the procedure for making the selection and also doing away with the appointment of teachers on ad hoc basis. The temporary ban which has been imposed by the State Government on the facts and circumstances of the case cannot be said to be affecting any provision of the Services Commission Act but was restraining the management for a temporary period from making or taking any process for the purpose of appointment/recruitment of the Principal, Lecturer and L.T. Grade teachers so that the new procedure of selection which was being contemplated by the State Government may be implemented by amending the aforesaid Act. The ban order only affects the power given to the Management to make appointments temporarily and, in our opinion, does not affect the provisions of the Services Commission Act which only provides a procedure for selection on the basis of which the Management could make the appointment.
13. The relevant paragraph 6 of Smt Rajni Chaudhary v. State of Uttar Pradesh (2001) 3 UP.LB.E.C. 2300 is reproduced below:
6. The ultimate decision of the Court was given In paragraph 10. the Court declined to hold the ban arbitrary. Relevant portion of paragraph 10 is being quoted below :
In our opinion, the ban order issued by the State Government cannot be said to be arbitrary for the following reasons:-
(i) It is not disputed that the liability of payment of salary is of the State Government in respect of teachers of the recognized institutions. The State Government has passed specific legislation for the payment of salary. If that be so, the action of the State Government to place a temporary, ban for the purposes of monitoring the appointments in case they cast a great financial burden on the State cannot be said to be an arbitrary action. It has been stated in the supplementary counter-affidavit that the District Inspector of Schools had not been perfectly monitoring the appointments which were being made by the Management over and above the standard prescribed which was affecting the finances of the State.
(ii) The State Government had also come to the conclusion that the Commission was not functioning properly as appointments were not being made expeditiously resulting in a situation that the Management was making ad hoc appointments. The State Government wanted to abolish the system of ad hoc appointments and also wanted to regularize the service of the ad hoc teachers. In case the services of the ad hoc teachers were to be regularized by the State Government the Management could not be permitted to make new appointments on the basis of selection by them as after regularization of the ad hoc teachers, there would be no necessity to make any appointments. The ban order, therefore, made by the State Government was perfectly justified.
14. The learned Single Judge in Smt. Rajani Chaudhary v. State of U.P. (2001) 3 UPLBEC 2300 has repelled that the ban only effects the power of Management to make appointment and does not effect the procedure for selection. It has considered the Apex Court judgment in Dr. Ram Ji Divedi v. State of U.P. and ors. 1983 UPLBEC 426 and has repelled the contention that after lifting the ban, the petitioner became entitled to receive salary and appointment and the appointment will revive which was dormant during the ban period.
15. In view of the above discussion, no fault can be found with the order of the District Inspector of Schools holding the appointment of the petitioner is illegal as it was made when such appointment was banned by the State Government. This disposes of the first question referred above.
16. Now I take up the second question. From a reading of the impugned order it Is clear that the District Inspector of Schools felt satisfied holding the appointment of the petitioner is illegal and void on the ground that no such appointment could have been legally offered by the Committee of Management to the petitioner in view of the ban imposed by the State Government. In this backdrop he did not apply his mind, although he was mandated to do so to consider the legality and validity of the appointment of the petitioner. To recapitulate the fact it is apt to note that this Court in writ petition No. 14854 of 1992 Chandra Bhan Singh v. District Inspector of Schools and Ors. while delivering the judgment on 19th of February, 1996 mandated the District Inspector of Schools by making the following observations:
the District Inspector of Schools, Azamgarh shall ensure that appointment of Shri Raj Deo Yadav is in accordance with law and is not vitiated by any such infirmity which may disentitle the said appointee from claiming any salary in respect of the post in question taking into consideration the ratio of the decision referred to herein above.
17. The effect of the aforesaid direction was not diluted by the judgment delivered in special appeal and as a mater of fact it was affirmed. The argument of Shri Indraj Singh, advocate, appearing for Shri Singh that the petitioner and Shri Singh both were sailing in same boat and were similarly situated has got some substance and cannot be brushed aside lightly. The appointment of Shri Singh was found to be illegal and void on the earlier occasion by this Court in the writ petitions filed by him. No reason whatsoever was put forward to show that the petitioner deserves a different treatment. The ratio laid down in the case of Kumari Radha Raizada is fully applicable in the case of the petitioner also. It may be noted here that the judgment in the case of Km. Radha Raizada has been approved by the Apex Court in Prabhat Kumar Sharma and Ors. v. State of U.P. . Relevant paragraph 11 is reproduced below:
11. These principles are unexceptionable. However, the question is whether they get attracted to the facts of this case. It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment, but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory. Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981 Order. Therefore, the Order is a permanent one but not transient as contended for. The Full Bench of the High Court has elaborately considered the effect of the Order and for cogent and valid reasons it has held that the Order will supplement the power to select and appoint ad hoc teachers as per the procedure prescribed under Section 18 of the Act. The view taken by the Division Bench following the Full Bench decision, therefore, cannot be faulted with. Accordingly, we find no merit in special leave petition.
18. In view of the above discussion, this Court is of the opinion that even if it is held that the ban imposed by the State Government was not legal, no relief can be granted to the petitioner as his appointment on the post in question is not in accordance with the judgment in the case of Km. Radha Raizada and Prabhat Kumar Sharma (supra).
19. The contention of the learned Counsel for the petitioner that the validity of order should be Judged only on the grounds on which it has been based and it cannot be supplemented by fresh reasons, is not applicable to the facts of the present case. The District Inspector of Schools has failed to discharge his duty and failed to obey the directions issued by this Court; to examine the question of validity of the appointment of the petitioner in the light of the judgment of Km. Radha Raizada's case. The District Inspector of Schools has failed to do so. Instead, he found the appointment of the petitioner is illegal on the ground of ban imposed by the State Government. Apparently the above course of action was adopted by the District Inspector of Schools as he was satisfied that the appointment of the petitioner is illegal on one ground i.e. ban imposed by the State Government; he needs not examine other grounds touching the validity of the appointment of the petitioner.
20. Apart from the above, it is acknowledged position of law that no person can claim a writ as a matter of right. Whenever, a court comes to the conclusion that substantial justice has been done, it may refuse to issue a writ, order or direction in such cases. A writ is issued for the enforcement of a provision of law and not for its breach. Whenever court comes to the conclusion that issuance of a writ in a given fact would amount infraction of law, in its discretion no such writ should be issued by the Court.
21. In view of the above discussion, there is no merit in the writ petition. The writ petition is dismissed accordingly.