Allahabad High Court
Rajiv Sharma vs State Of U.P. And Others on 16 December, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 A.F.R. Case :- WRIT - A No. - 24224 of 1996 Petitioner :- Rajiv Sharma Respondent :- State Of U.P. And Others Counsel for Petitioner :- B.B.Paul Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Called in revised. Heard Shri B.B. Paul, learned counsel for petitioner and learned Standing Counsel for respondent Nos. 1 to 4.
2. Petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the District Inspector of Schools, Aligarh (hereinafter referred to as "D.I.O.S.") to accord financial approval to petitioner's appointment on the post of Assistant Teacher, L.T. Grade in Gopi Ram Paliwal Inter College, Aligarh (hereinafter referred to as "College") and to continue to pay him regular salary on the said post along with arrears from 22.8.1993. Through an amendment application No. Nil of 2013, which has been filed along with supplementary affidavit dated 11.9.2013, one more prayer has been sought to be added i.e. commanding the respondents to regularise the services of petitioner on the post of Assistant Teacher, L.T. Grade from the date, the same became due to him.
3. The aforesaid College is a recognised aided non Government Secondary Educational institution imparting education from Class VI to Class XII governed by U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act") and for the purpose of payment of salary, it is governed by Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "1971 Act").
4. It is also not in dispute that for the purpose of recruitment of teaching staff of the college, it is governed by the provisions of Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act"). One post of Lecturer and two posts of Assistant Teacher, L.T. Grade were vacant hence, a requisition was sent by the Management to U.P. Secondary Education Services Commission and Selection Board (hereinafter referred to as "Board") through D.I.O.S., a copy whereof has been filed as Annexure 2 to the writ petition, though in para 4 of writ petition, it is mentioned to have been filed as Annexure 1.
5. One Vishnu Dutt Sharma, Assistant Teacher, L.T. Grade was to retire on 30.6.1992 and therefore, the Committee of Management of the College in its resolution dated 29.12.1991 decided to send requisition in respect of the said future vacancy to fulfil. Since no recommendation was made by the Board, the Management proceeded to make ad-hoc appointment and advertisement was published in daily newspaper 'Amar Ujala' Agra, on 21.7.1993, inviting applications for appointment to the post of Assistant Teacher, L.T. Grade in Hindi, History and Geography subjects. The applications were invited up to 14.8.1993 and interview was fixed on 22.8.1993. The Selection Committee recommended petitioner for appointment to the post of Assistant Teacher, L.T. Grade and placed two others in waiting list. On 22.8.1993 itself a letter of appointment was issued to petitioner appointing him under Section 18 (1) (kha) of 1982 Act on ad-hoc basis as Assistant Teacher, L.T. Grade (Hindi & History) with the further condition that salary shall be paid after approval of D.I.O.S. The petitioner joined on 23.8.1993. The papers relating to appointment of petitioner were forwarded to D.I.O.S. on 23.8.1993 and since then petitioner is working but salary has not been paid. In the meantime, petitioner also submitted representation and getting no response has come to this Court with a prayer seeking a mandamus for payment of salary and financial approval by the D.I.O.S.
6. This writ petition was entertained on 6.8.1996 and this Court passed the following interim order while connecting it with Civil Misc. Writ Petition No.15529 of 1996.
"Connect this writ petition along with writ petition no.15529 of 1996.
The District Inspector of Schools, Aligarh is directed to pass orders on the representation of the petitioner sent in the year 1994 within a period of two weeks from the date of receipt of a certified copy of this order and in case it is found that the petitioner was appointed on a post which was duly created and was lying vacant, he shall accord his approval subject to petitioner being qualified for the appointment on the post. In case, however, he finds that the petitioner's appointment is not to be approved he shall pass a reasoned order and duly communicate to the petitioner and in the event, he shall also file counter affidavit".
7. It is said that pursuant to above interim order dated 6.8.1996, D.I.O.S. passed an order dated 16.9.1996 (Annexure 2 to supplementary affidavit) accepting petitioner's representation and holding that petitioner is entitled for payment of salary. Since then, petitioner has been continuing and now in view of Section 33-A of Act No.5 of 1982, he is also seeking regularisation.
8. In order to grant relief as sought by petitioner, the following aspects have to be examined by this Court. (i) Whether the ad-hoc appointment of petitioner made by the Committee of Management on 22.8.1993 was in accordance with law and the procedure prescribed in the statute; (ii) whether petitioner is entitled to claim regularisation under Section 33-A of Act 1982; (iii) Whether petitioner continuing in service is entitled for any relief ?
9. Merely on account of lapse of long period of time of almost 20 years, from the date of his appointment, pursuant to ex-parte interim order passed by D.I.O.S. on 16.9.1996 it cannot be said that the petitioner, as a matter of right is entitled for regularisation. From the facts disclosed by petitioner in writ petition, it is evident that vacancy in question was substantive. Therefore, ad hoc appointment thereon could have been made after following the procedure prescribed in para 5 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order") read with Section 18 of Act 1981. The provision as it was on the statute book when the petitioner claims to have been appointed, which ought to have been followed reads as under:
"5. Ad hoc appointment by direct recruitment.- (1) Where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).
(2) The management shall, as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.
(3) Every application referred to in Clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied-
(a) by a crossed postal order worth ten rupees payable to such Inspector;
(b) by a self-addressed envelope bearing postal stamp for purposes of registration.
(4) (a) The District Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.
(b) Where two or more candidates obtain equal quality points, the candidate obtaining higher percentage of marks in all examinations (High School, Intermediate, Graduate Degree and Post-Graduate Degree) essential for the particular grade, shall be placed higher and if such percentage is also equal, the candidate obtaining higher percentage of marks in the last essential examination of degree, as the case may be, shall be placed higher. In case percentage of marks in the last essential examination degree is also equal, the candidate senior in age shall be placed higher.
(5)If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institution shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted."
10. The effect and consequence of non compliance of procedure prescribed in First Order issued under the Act 1982 has been considered by a Full Bench of this Court in Radha Raizada Vs. Committee of Management, 1994 (2) ESC 345 (FB) and confirming the said judgment the Apex Court in Prabhat Kumar Sharma & Others Vs. State of U.P. & Others, A.I.R. 1996 SC 2638, held that any appointment made without following the procedure under the Removal of Difficulties Order is void ab initio and would not confer any right upon the incumbent either to hold the post or to claim salary. This decision was reiterated and followed by the Apex Court in Shesh Mani Shukla Vs. D.I.O.S., Deoria & Others, JT 2009 (10) SC 309.
11. In the entire writ petition there is no averment showing that aforesaid procedure was followed. In a vague manner this much has been said that vacancy was advertised and thereafter petitioner was appointed. It is nowhere pleaded that any procedure prescribed in First Order was ever observed.
12. Thus, from the pleadings of the petitioner it is evident that procedure prescribed in First Order has not at all been observed and therefore, in view of the law laid down by Apex Court in the case of Prabhat Kumar Sharma (supra) and Shesh Mani Shukla (supra), appointment of the petitioner was void ab initio. Since procedure for ad hoc appointment prescribed in the First Order was not followed therefore provisions applicable for regularization is also not applicable.
13. Then comes second question as to whether petitioner is entitled and has right of consideration for regularisation under Section 33-A of Act, 1982. On a bare perusal of Section 33-A of the said Act, I find it has no application to the instant case in any manner. Sub-section (1) thereof provides regularisation of teachers appointed on ad-hoc basis before the commencement of U.P. Secondary Education Service Selection Board (Amendment Ordinance),1985 which is not the case of petitioner.
14. Sub-Section (1-A) deals with the regularisation of ad-hoc teachers promoted on ad-hoc basis against substantive vacancy in accordance with para 2 of First Order as amended from time to time w.e.f. the date of commencement of U.P. Secondary Education Service Selection Board Amendment Act, 1991 which came into force on 6.4.1991.
15. Sub-section (1-B) provides for regularisation of those ad-hoc teachers who have been appointed against the substantive vacancy after 12.6.1985 and before 13.5.1989. None of the aforesaid provisions apply to the case of petitioner.
16. Sub-section (1-C) talks of those teachers who have been appointed by promotion or by direct recruitment before 31.7.1988 on ad hoc basis against the substantive vacancy and for their regularisation, benefit is to be given from the date of commencement of U.P. Secondary Education Service Selection Board Amendment Act, 1991.
17. However, from a careful reading of sub-section (1-C), I find that even this provision can help the petitioner only if his appointment was made in accordance with Section 18 of Act, 1982. No other provision has been referred by petitioner to fortify his right to claim regularisation.
18. Lastly, I come to the question that since petitioner has continued working for long period therefore, at this stage, he should not be left in lurch. In this regard, learned counsel for petitioner contended that some linency should be shown in his favour inasmuch as the petitioner in one or the other way has been successful in continuing to work in the College for last more than two decades.
19. It is true that in some of the precedents without laying down any principle of law the Courts have shown a lenient view and have allowed the incumbent concerned to continue but in recent decade a strict approach has been shown by Apex Court which is more apt to adhere to rule of law. The kind of sympathy sought in this case has been termed as "misplaced sympathy". The view of the Court is that anything acquired illegally if allowed to remain with the person so acquired it would amount to confer a premium upon him of such illegality. This would encourage the people to go ahead with such kind of illegalities with expectations in the context of similar precedence that if they are successful in continuing long time, the judicial forums may not interfere and allow them to continue with their illegally obtained benefits. This has been seriously castigated and held to benefit more the violators and cause a permanent deprivation to law abiders.
20. In State of Orissa and another Vs. Mamata Mohanty, 2011(3) SCC 436 the Apex Court says that an order bad from inception would not get sanctified at a later stage. No subsequent action or development can validate an action which was not lawful at its inception for the reason that illegality strikes at the root of order. It goes on to say that it would be beyond the competence of any authority to validate such an order. Relying and referring to its earlier decisions in Upen Chandra Gogoi Vs. State of Assam and others, AIR 1998 SC 1289; Mangal Prasad Tamoli (Dead) by L.Rs. Vs. Narvadeshwar Mishra (Dead) by L.Rs. and others, AIR 2005 SC 1964; and, Ritesh Tiwari and another Vs. State of U.P. and others, AIR 2010 SC 3823, the court in para 20 of the judgement said:
"It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."
21. It is next contended that since petitioner has continued to work for the last more than 20 years, some kind of right must be read to have germinated in him and this Court may refrain from making such order or observation which may result in depriving the very employment of petitioner and that would be violative of his fundamental right under Article 21 of the Constitution.
22. In fact even this aspect stands answered by the Apex Court in State of Orissa Vs. Mamata Mohanty (supra) by observing:
"The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."
23. In an earlier decision also in Dr. M.S. Patil Vs. Gulbarga University (supra) which has been followed by Apex Court in State of Orissa Vs. Mamata Mohanty (supra) the Apex Court considered a similar argument in paras 11 and 12 of the judgement and rejecting the same said:
"11. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned senior counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as lecturer and from where he had resigned to join to this post.
12. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the mater, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour. The matter can also be looked at from a slightly different angle. It is noted above how the appellant was able to secure the appointment and how he managed to continue on the post. By notification dated August 13, 2004, the appellant was discharged from the service of the University on the post of Reader in Kannada but was asked to continue on ad-hoc basis until the appointment of the new incumbent to the post. His position is, thus, only ad- hoc till the appointment of the new incumbent and in that position he is continuing on the basis of the direction of this court to maintain status quo. We see no reason to continue this ad-hoc arrangement any further and we do not wish to stand any longer in the way of the post being filled up on a regular basis."
24. These observations very aptly apply in this case also where this Court has no hesitation in observing that flagrant illegality committed by College Management as well as the educational authorities in committing breach of statute has resulted in conferring an undue illegal advantage in favour of petitioner and someone in public at large who otherwise may have been more suitable and eligible but under carpet approach has denied the right of consideration and consequently the right to earn livelihood by seeking employment on the post in question even on ad hoc basis though actually it has continued for decades together. The situation is really not only highly dis-satisfactory but unfortunate and justify a serious disapproval and strictures of this Court.
25. I have looked into this matter in full detail so as to curtail more than two decades litigation and also to save the educational institutions from the bounds of management of scrupulous persons who somehow get over the things managed by keeping the matter pending or undecided or un-adjudicated in one or the other manner.
26. In view of above discussion and exposition of law, the writ petition is dismissed.
27. Interim order, if any, stands vacated.
Order Date :- 16.12.2013 Pk.