Allahabad High Court
Miss Sunita Sharma And Anr. vs District Inspector Of Schools And Ors. on 29 January, 2003
Equivalent citations: 2003(2)AWC1172
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
1. Heard Sri V.C. Misra, learned senior Advocate with Sri Vikrant Pandey, counsel for the petitioner and learned Standing Counsel for the respondent No. 2.
2. In this writ petition, a prayer has been made by the petitioner for a writ of certiorari calling the respondents to produce the record of the case and to quash the impugned orders dated 7.3.1998 and 19.3.1998 (Annexures-8 and 9 to the writ petition) passed by respondent No. 1, whereby the respondent No. 1 disapproved the appointment of the petitioner No. 1 as a Lecturer in Biology made on short-term vacancy on the ground that vide Government Order dated 30.7.1991. there has been a total ban on the appointment and further the Director of Education vide his letter dated 31.8.1991 has directed that no final approval be accorded to any appointment made in Intermediate College. Similarly the appointment of the petitioner No. 2 as Assistant Teacher in L.T. Grade was also disapproved on the aforesaid ground vide order dated 19.3.1998 by the respondent No. 1. While disapproving the appointment of both the petitioners on the ground of ban imposed by the aforesaid Government order, the respondent No. 1 lost sight of the Government order dated 26.9.1991, whereby the ban imposed was superseded and lifted.
3. It appears that on 30.6.1997 the Principal of the Institution Chameli Devi Girls Inter College, Mathura retired and as such one Km. Snigdha Talpatra, who was the senior most teacher in the Institution was given ad hoc promotion and appointed as ad hoc Principal of the Institution. As a result of promotion of Miss Snigdha Talpatra, a short-term vacancy arose in the Lecturer grade and similarly another short-term vacancy arose on account of promotion of Smt. Pushpa Pandey, a L.T. Grade teacher to Lecturer Grade, Thereafter the selection committee after interviewing the candidates, recommended the name of the petitioners for appointment on the post of Lecturer (Biology) and as Assistant Teacher in L.T. Grade, respectively. On the basis of the aforesaid recommendation the management issued an appointment order dated 17.7.1997 appointing the petitioner No. 1 as a Lecturer in Biology in short-term vacancy and the petitioner No. 2 was also given appointment on the same day as Assistant Teacher in L.T. Grade in the short-term vacancy.
4. However, thereafter the Committee of Management forwarded the papers pertaining to the appointment of the petitioners to the District Inspector of Schools, Mathura for approval vide letter dated 18.10,1997, which was disapproved on 7.3.1998 by the respondent No. 1, D.I.O.S., Mathura by saying that the ban for making appointment to direct recruitment or to short-term vacancy under the purview of the Commission was prevailing.
5. Sri V.C. Misra, learned senior Counsel appearing for the petitioner, has argued that there is no other ground referred in impugned order in question in the writ petition.
6. The counter-affidavit has been filed by the Manager, Chameli Devi Khandelwal Girls Inter College, Mathura, wherein in para 7 he has mentioned that the vacancy in question was advertised and published in local Hindi newspaper having wide circulation in the State and the applications were invited amongst the duly qualified candidates and a proper selection committee was constituted in which eight candidates appeared before the selection committee, out of which the petitioner Nos. 1 and 2 were selected and appointed as Lecturer in Biology and Assistant Teacher in L.T. Grade respectively. It has further been mentioned in the counter-affidavit that the G.O. dated 26.9.1991 is also not applicable in the case of the short-term vacancy and there was no ban at the appointment of short-term vacancy and as such the selection of the petitioners were made in accordance with law. However, in the counter-affidavit given on behalf of the District Inspector of Schools, Mathura, it has been indicated as below :
"The advertisement was not in accordance with the rules and regulations framed under the U. P. Intermediate Education Act. According to the existing law, advertisement has to be made in two daily newspapers. One should be of State level circulation and other of local circulation so as to meet the requirement of Articles 14 and 16 of the Constitution of India and this view has been approved by this Hon'ble Court in its Full Bench decision in 1994 (3) UPLBEC 1551 popularly known as Radha Raizada case. In this case even according to the petitioner, advertisement has been made in a local Hindi News Paper, therefore, the petitioner's appointment is bad in law and no approval could be granted. Moreover, this aspect could not be detailed in the order refusing the approval of the petitioners' appointment but the same may be read in consonance with the order refusing the approval."
7. Learned counsel for the petitioners has placed reliance on the decision of this Court passed on April 16, 1992 in Civil Misc. Writ Petition No. NIL of 1992, Mahendra Pratap Stngh v. District Inspector of Schools, Mau (enclosed as Annexure-13 to the writ petition), whereby while allowing the writ petition of Mahendra Pratap Singh this Court vide its order dated 16th April, 1992 has noticed that the ban which was imposed by Telex dated 29.6.1991 and G.O. dated 17.7.1991 has been superseded by another G.O. dated 26th September, 1991 by which the ban has been lifted.
8. On behalf of the learned counsel for the petitioners reliance has been made on a decision in Education Service Cases at page 1670--District Inspector of Schools, Kanpur Nagar and Ors. v. Diwakar Lal and Ors., 200O (3) AWC 2182 : 2000 (3) ESC 1670 (All) (Special Appeal No. 40 of 2000 decided on 25th May, 2000), wherein it is mentioned that the fresh ground in the counter-affidavit cannot be taken by the authority concerned. Para 7 of the above case reads as under :
"7. The learned single Judge held that by adding a ground in the counter-affidavit which did not find mention in the impugned order passed by the District Inspector of Schools, the respondents cannot be permitted to support the impugned order by carving out a new case or raise a new ground for the first time before the appellate/higher authority or Court to make the order valid. In support reference was made to the case of Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851."
9. The averments made in the counter-affidavit of the District Inspector of Schools has been controverted and the contentions of the writ petition have been reiterated on behalf of the petitioner.
10. I have heard learned counsel for the parties and I find that the vacancy in question were advertised and published in the local News Paper including Hindi Dainik 'Aaj' after its wide circulation in the State and as such the vacancies were advertised. However, the refusal in not making sanction and approval of the appointment by the District Inspector of Schools is not legally Justifiable as the said ban dated 29.6.1991 was superseded by another G.O. dated 26th September, 1991 by which the ban for making appointment against the short-term vacancy was lifted.
11. The petitioners are entitled to receive the salary from the next month and onwards and the arrears of salary, if they have taught in the Institution, and the same shall be disbursed to them within a period of six months from the date of production of a certified copy of this order.