Allahabad High Court
Sankatha Prasad Mishra vs Director Of Education & Others on 10 January, 2014
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 06.12.2013 Delivered on 10.01.2014 Court No. - 34 Case :- WRIT - A No. - 43303 of 2000 Petitioner :- Sankatha Prasad Mishra Respondent :- Director Of Education & Others Counsel for Petitioner :- N.L. Pandey Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. The petitioner, working as Principal of Sri Motilal Nehru Inter College, Basupur, District Ghazipur (hereinafter referred to as the "College") is aggrieved by certain orders passed by District Inspector of Schools, Ghazipur (hereinafter referred to as the "DIOS") and the Director of Education (Secondary), U.P. at Allahabad (hereinafter referred to as the "DE"), hence has sought a writ of certiorari for quashing of those orders by filing this writ petition under Article 226 of the Constitution.
2. The first order impugned in this petition is dated 24.04.2000 (Annexure-7 to the writ petition) passed by DIOS directing for recovery of amount of salary paid illegally from State exchequer to one, Sri Rajeev Kumar, respondent no. 6, Peon for the period of 01.11.1996 to 30.11.1999. The second order is dated 29.05.2000 (Annexure-11 to the writ petition), whereby the objection/ representation made by petitioner against the order dated 24.04.2000 has been considered by DIOS, and rejected. The third order is dated 19.06.2000 (Annexure-14 to the writ petition), whereby the DIOS has directed petitioner to deposit the amount sought to be recovered under order dated 24.04.2000 immediately, else the recovery shall be made from salary. The fourth order is dated 02.03.2000, which is not annexed to the writ petition, allegedly passed by DE pursuant whereto the DIOS has passed earlier mentioned impugned orders.
3. The facts, in brief, giving rise to present dispute are as under.
4. The College is recognized under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as the "Act, 1921") and being in grant-in-aid, the payment of salary of teaching and non-teaching staffs of the College is governed by U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971 (hereinafter referred to as the "Act, 1971"). The petitioner was working as Principal of the College.
5. One, Sri Ghurbhar Ram, father of respondent no. 6, Sri Rajeev Kumar, was a Class-IV employee working as Sweeper, proceeded on leave in April, 1996 and on the aforesaid short-term vacancy, petitioner, who is the appointing authority of Class-IV employees in the College, appointed respondent no. 6 as Sweeper vide order dated 19.04.1996, for a period of 6 months. The DIOS also approved said appointment for a period up to 31.10.1996. The respondent no. 6, however, was allowed to continue after 31.10.1996 but when his salary was not paid from State exchequer, he preferred Writ Petition No. 30151 of 1998, wherein following order was passed on 17.09.1998:
"Head learned counsel for the petitioner.
This petition is disposed of with a direction to the authority concerned to grant salary to the petitioner for the period for which he had actually worked. However this order does not entitle the petitioner to continue in service."
6. The petitioner thereupon prepared salary bill of respondent no. 6 for the period i.e. since 1996 till 1998 and sent it to DIOS for his clearance. A query was made by DIOS vide letter dated 28.09.1999 as to why respondent no. 6 was allowed to continue and why salary payable to him from State Exchequer should not be recovered from petitioner.
7. He (the petitioner) replied the same vide letter dated 15.10.1999 wherein he admitted that respondent no. 6 was appointed on a leave vacancy on 19.04.1996 and has continued to work but ceased to work after retirement of Sri Ghurbar Ram, in whose vacancy respondent no. 6 was allowed to work. He further says that respondent no. 6 continued to work and signed attendance register under the direction of Manager of the College and, therefore, he (petitioner) has no responsibility in continuance of respondent no. 6.
8. Since there was an order passed by this Court, the DIOS, though proceeded to make arrangement of payment of salary to respondent no. 6 for the period he worked, but proceeded to fix responsibility upon the person concerned who allowed respondent no. 6 illegally to continue on Class-IV post. In this regard when details of working days of respondent no. 6 was sought, the petitioner informed that relevant record showing working days of respondent no. 6 is not available and, therefore, he cannot furnish the same. It is in these circumstances, it appears that, the DE issued order dated 02.03.2000, to recover the amount of salary liable to be paid to respondent no. 6, under the orders of this Court, for the period he was illegally allowed to continue from the erring person and pursuant thereto DIOS passed order dated 24.04.2000. The petitioner then objected said order vide his representation dated 11.05.2000, whereupon the matter was reconsidered by DIOS and he passed order dated 29.05.2000 (Annexure-11 to the writ petition) upholding his order dated 24.04.2000 and directing petitioner to deposit the amount of salary payable to respondent no. 6 for the period he was allowed illegally to continue on Class-IV post.
9. Since the petitioner did not take any further action towards payment, hence, the third order/letter was issued by DIOS on 19.06.2000 as a reminder for deposit of the amount under recovery.
10. A counter affidavit has been filed on behalf of respondent no. 3 stating that the initial appointment made on leave vacancy of respondent no. 6 was approved by the then DIOS for the period of 19.04.1996 to 31.07.1996 and salary from State exchequer was paid accordingly. Then again when substantively appointed Class-IV employee, i.e., father of respondent no. 6 sought extension of his leave, the short-term appointment of respondent no. 6 was approved by the then DIOS upto 31.10.1996 but due to non-availability of financial sanction, salary from 01.08.1996 to 31.10.1996 could not be paid to respondent no. 6. The respondent no. 6, therefore, was entitled to claim salary from State exchequer only for the period upto 31.10.1996 since there was no approval granted for subsequent period and he was illegally allowed to continue by petitioner, hence amount of salary, if any, is forced to be paid from State exchequer, the petitioner is/would be personally responsible to make good for the same and this is what has been said by DE in its letter dated 02.03.2000. It is also said that the actual holder of Class-IV post retired on 31.08.1998 but respondent no. 6 was allowed to continue even thereafter which was patently illegal and for this entire act petitioner is responsible.
11. Sri N.L. Pandey, learned counsel for the petitioner, contended that respondent no. 6 was allowed to continue since the substantively appointed Class-IV employee, i.e., Sweeper, who was father of respondent no. 6 continued to remain absent and the Manager of College was insisting upon petitioner to allow him to continue to work hence petitioner cannot be held responsible and the impugned orders are patently illegal. He further said that in any case petitioner was the appointing authority of Class-IV employees in the College and had made appointment on a leave vacancy, hence it cannot be said that appointment of respondent no. 6 was illegal and that being so, no recovery can be made from petitioner.
12. However, I find no force in the submission. A substantive appointment or a temporary appointment for long duration can be made only in compliance of Regulation 101, Chapter-III of the Regulations framed under Act, 1921. It talks of prior approval of DIOS. In the present case, respondent no. 6 was never appointed after complying requirement of Regulation 101. Moreover, the vacancy was never advertised, no process of selection consistent with Article 16 of the Constitution undergone and respondent no. 6, who was son of absentee employee, was appointed by petitioner obviously to show favour to the outgoing employee who was admittedly going to retire on attaining the age of superannuation on 31.08.1998. In fact it is evident from record that it was a circuitous mode adopted by petitioner to appoint respondent no. 6, whose father proceeded on leave, so as to prove way for appointment on short term basis, without following procedure prescribed in law. But here the DIOS functioned cautiously and approved appointment initially for three months and odd only and then again it was extended for a further period of two months and not beyond that. Since it was a collusive appointment, respondent no. 6 obviously continued to function without caring that the approval granted by DIOS has already elapsed. The petitioner, who was appointing authority of Class-IV employees in the College, allowed the same knowingly, intentionally and in due cooperation and coordination with the beneficiary and others.
13. It is well established that no person can take advantage of his own wrong. A time has come where accountability of responsible person in such kind of matter need be determined.
14. In the present case, respondents have clearly found petitioner responsible for all these illegalities and, therefore, he has rightly been held accountable and responsible for payment of entire dues payable to respondent no. 6 on account of illegalities committed by petitioner. I, therefore, find no legal or otherwise infirmity in the impugned orders warranting interference in extraordinary equitable jurisdiction under Article 226 of the Constitution.
15. The writ petition lacks merit. Dismissed.
16. No costs.
Order Date :-10.01.2014 AK