Allahabad High Court
Smt. Amita Tripathi (Tewari) vs The Director Of Education, Allahabad, ... on 28 February, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 21.2.2018
Delivered on 28.02.2018
Case :- WRIT - A No. - 6698 of 1995
Petitioner :- Smt. Amita Tripathi (Tewari)
Respondent :- The Director Of Education, Allahabad, And Others
Counsel for Petitioner :- S.S. Chauhan,R.S. Mishra,R.S.Sharma,Vinayakrishna Malaviya
Counsel for Respondent :- P.S. Baghel,D.K. Singh,S.C.,V.K.Singh,Y. Shukla
Hon'ble Siddharth,J.
Heard Sri N.L. Pandey, learned Counsel for the petitioner and Sri Sankalp Narain holding brief of Shri V.K. Singh, learned Counsel for the respondents.
This writ petition has been filed by the petitioner, praying for the following reliefs,
a). a, writ of mandamus, order or direction in the nature of mandamus be issued commanding the opposite parties nos. 1,2 3 and 4 to direct the Management to produce the salary bill to the petitioner and to allow the petitioner to sign the attendance register;
b). a writ of mandamus, order or direction in the nature of mandamus be issued directing the opposite parties to pay entire promotional benefit of the petitioner counting regular service of the petitioner on the basis of order dated 20.01.1994;
c). any other writ, order or direction in the nature of a writ be issued, which this Hon'ble Court may deem fit and proper in the circumstances of the case and to which the petitioner is entitled in law;
The facts of the case are that Kanpur Kanya Mahavidyalaya Inter College (hereinafter referred to as ''Institution') is a recognized institution under the U.P. Intermediate Education Act, 1921, and Regulations framed there under. The payment of Salary Act, 1971, is applicable in the institution and, as such, the salary to the teachers and employees is being paid under the provisions of Payment of Salary Act, 1971. Under Section 3 of the Payment of Salary Act, 1971, the provisions have been laid down that in case the Management does not pay the salary to the teachers and employees of the institution the same can be paid by the District Inspector of Schools, under the provisions of Sub- section 3 of the said Section. It is further provided that in case the Management does not pay the salary to all the teachers and employees of the institution the District Inspector of Schools may disburse the salary by way of single operation of the account, so that the teachers or employees should not suffer. The petitioner was initially appointed in 1982, in L.T. grade against clear vacancy, to teach Science subjects to the students of Class IX and X and ever since the petitioner was continuously working in the institution as Assistant Teacher. The Principal of the institution has also issued a certificate to the petitioner on 9.1.1994, 30.10.1996 and 30.1.1989, stating clearly that the petitioner is teaching Science subjects to the students of Class IX and X since 1982 and her performance is upto the mark. The State Government promulgated an ordinance on 6.5.1991, by which the provisions of Section 33-A were added in the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as an ''Act No.5 of 1982') by adding said provisions. The teachers, who were appointed against clear vacancy after 12.06.1985 or before 13.05.1989 and were continued on their post, were regularized. After the aforesaid ordinance the petitioner sought her regularization on the post of L.T. grade teacher, by making various representations, but no heed was paid to the representations of the petitioner and, as such, the petitioner was left with no alternative but to file a writ petition in this Hon'ble Court claiming her right for regularization of the services in the institution. The writ petition of the petitioner was finally disposed of by order dated 26.07.1991 with observation that the petitioner's representation regarding regularization of her service be considered expeditiously be Regional Inspectress of Girls School within four months from the receipt of certified copy of this order. The petitioner constantly approached to the Authorities, but on account of inaction of the Management the petitioner's case remained pending for about two and half years and ultimately the case of the petitioner was decided by order dated 20.1.1994, passed by opposite party no.2. It is worthwhile to mention here that the post of Regional Inspectress of Girls Schools has been abolished and now matter is being dealt with the District Inspector of Schools, with regard to the payment of salary to the teachers and employees of Girls Schools as well as Boys School. The Management of the Institution was aggrieved against the petitioner and, as such, was not permitting the petitioner to mark her attendance in the attendance register of the Institution. There was no alternative left for the petitioner except to present herself in the office of the District Inspector of Schools and sign regularly. To give effect to the order, passed by the Deputy Director of Education (II), the petitioner repeatedly approached the Management for her attendance, but no heed was paid to regularize the petitioner, and, as such, the petitioner sent applications on 28.1.1994, 29.1.1994, 21.2.1994 and 28.2.1994, but no heed was paid to the request of the petitioner, nor the Management allowed the petitioner to sign the attendance register. The petitioner complained the matter of arbitrariness of the Management of the Institution, to the Educational Authorities. As directed by opposite party no.2 the petitioner regularly submitting her attendance in the office of the District Inspector of Schools since 31.01.1994. Attendances are being regularly marked in the office of the District Inspector of Schools. The petitioner submitted her representation to the Regional Deputy Director of Education (II), Kanpur Region, Kanpur, and to the Finance and Accounts Officer of the Office of the District Inspectoress of Schools, Kanpur City, Kanpur, on 18.02.1994, whch was duly received in the respective offices on the same date. The Regional Deputy Director of Education, Kanpur Region, Kanpur, issued another order on 4.3.1994, directing the District Inspector of Schools, Kanpur City, to allow the petitioner in the Institution and arrange for her salary. Inspite of the order dated 04.03.1994 nothing has done and, as such, another order dated 5.5.1994 was also issued by respondent no.2, but on one pretext or the other the matter of the petitioner was lingered. The compliance of orders dated 20.01.1994, 4.3.1994 and 5.5.1994 has not yet been done and the petitioner is being made to run from pillar to post. The orders dated 20.1.1994, 4.3.1994 and 5.5.1994 have neither been challenged by the Management of the Institution, nor the said order are being complied with. Whenever the petitioner has approached the respondents she has been directed to approach the Hon'ble High Court for proper and specific direction to comply the orders dated 21.1.1994, 4.3.1994 and 5.5.1994, issued by the Deputy Director of Education, Kanpur Region, Kanpur. The petitioner is suffering irreparable loss and injury, who is teaching in this Institution since 1982, and has regularly worked. After due enquiry her appointment has been regularized by the Deputy Director of Education (II), Kanpur Region, Kanpur. As stated above, the petitioner approached to the Authorities, but no heed has yet been paid to direct the Management of the Institution to send salary bill to the office of the District Inspector of Schools in compliance with the orders dated 20.01.1994, 4.3.1994 and 5.5.1994 and, as such, the petitioner is left with no other alternative remedy except by way of this writ petition under Article 226 of the Constitution of India for compliance of the orders dated 20.1.1994, 4.3.1994 and 5.5.1994..
The respondent no.3 has filed a Counter Affidavit stating that there is no iota of evidence available on record to show that the petitioner was appointed in the Institution after adopting proper procedure for appointment and she has also not filed her letter of appointment along with writ petition. The certificate annexed along with the writ petition shows that it is a letter dated 09.01.1994 in which it has been stated that she was engaged for teaching on leave vacancy for 3 years and the second annexure shows that she is working since July 1982 but neither appointment letter has been filed by the petitioner nor it is available in the office of the respondent no.3 nor any order of approval of appointment of the petitioner is available in the office record. Hence it cannot be said that the appointment of the petitioner was in accordance with law. The post of Regional Inspectress of Girls Schools was abolished and the same has been converted as Deputy Director of Education (2nd). There is no provision for joining of the petitioner in the office of District Inspector of School and signing regularly in his office. No question arises for submitting the petitioner's joining in the office of respondent no.3, since 31.03.1994. It is noteworthy here that as per order dated 20.01.1994 issued by the Dy. Director of Education (2nd), Kanpur Division Kanpur the Manager of the Institution was directed to comply the order of Dy. Director of Education regarding joining of petitioner. As per letter dated 04.03.1994 and 5.5.1995, the Dy. Director of Education-II directed for joining of the petitioner and in pursuance of the order of the Deputy Director, the Manager was directed to permit the petitioner to join her post as directed by the Dy.Director of Education. Lastly on 15.02.1997 the last direction was given from the office of the respondent no.3 to the Manager to permit the petitioner to join the post and it has also been mentioned that in the absence of obeying the order the payment will be made by single operation and the Manager assured vide letter dated 15.03.1997 that he will follow the order and will permit the petitioner to join. Similarly a letter has been written by the Manager to the petitioner to join her post. After giving letter to the petitioner for joining on her post in pursuance of the letters issued from the Educational Department. The Manager vide his letter dated 15.03.1997 informed the respondent no.3 that the petitioner was never given appointment in the Institution in L.T. Grade nor any approval was asked from the department but in fact she was engaged as part time temporary tutor but only on the basis of letters issued by the authorities, the petitioner has been permitted to join the post. As per letter dated 15.03.1997 it is crystal clear that the petitioner was not appointed after adopting due process of appointment and she has never even produced the appointment letter. It is not disputed that the direction has been received by the office of the respondent no.3 from the office of Director of Education, Kanpur but the Management informed that neither the petitioner was appointed as L.T. Grade nor any approval was accorded from the department, hence she was not entitled to get the salary from the public exchequer. But the office of the D.I.O.S., is small instrumentality of the Education Department in the District and is bound to follow the order of his superior officers and in pursuance of the order of the Dy. Director of Education, the respondent no.3 has to pass the orders in favour of the petitioner. The office of the respondent no.3 tried to get the order of Dy. Director of Education complied with. In absence of Counter Affidavit this Hon'ble Court has taken serious view and passed order dated 4.9.1997 and having left with no alternative the management was directed vide office letter of the respondent no.3 dated 8.4.1997, to permit the petitioner payment of salary. In absence of compliance of order the Institution in question be taken into single operation for payment of salary. Delay caused in filing Counter Affidavit was due to examination of High School and Intermediate and prior to 04.02.1997 the matter was not brought to the notice of the respondent no.3 The delay caused in filing the Counter Affidavit is highly regretted. The letter of the Manager reveals that she was not appointed in accordance with law nor Manager has sought any approval from the department even though the petitioner filed some paper before the Dy. Director of Education and got order from him and for compliance of the said order , the respondent no.3 also wrote to the department but thereafter, it was found that the petitioner is not entitled to get any relief from this Hon'ble Court for payment of salary from pubic exchequer. The grounds taken by the petitioner are frivolous and the writ petition is devoid of merits and is liable to be dismissed with costs.
The respondent no.5 has filed Counter Affidavit stating that the present writ petition has been filed by the petitioner, seeking a writ of mandamus, commanding the respondent nos.1, 2, 3 and 4 to direct the Management to produce the salary bills of the petitioner and to allow the petitioner to sign the attendance register. From a perusal of the writ petition filed by the petitioner, it transpires that the petitioner is claiming herself to be the validly appointed teacher w.e.f., 1982. It is evident from the Writ Petition that the petitioner instead of marking her attendance in the attendance register of the Institution, marked the attendance register in the office of the District Inspector of Schools and signed regularly. At the very outset, it is submitted that the present Writ Petition is based on wholly incorrect facts and material facts have been concealed from this Hon'ble Court and as such, the petitioner is not entitled to any equitable relief from this Hon'ble Court under Article 226 of the Constitution of India. It is necessary to mention that no appointment letter was issued to the petitioner. She has never worked in the Institution of the answering respondent as has been alleged by her w.e.f., 1982. For sometime the petitioner worked on purely temporary basis against the vacant posts for short term, and as such, the petitioner cannot claim appointment on substantive vacancy in the Institution of the answering respondent, for which the present writ petition is not maintainable. Even otherwise, the petitioner has not been appointed either in the Institution against any vacancy or on any post. Even in between 1982 to 1989, the petitioner did not work in the answering respondent's Institution. He worked only for short period, for two or three months, when the vacancies arose on account of leave of regular teacher. So far as Annexure No.1 is concerned, the same is a fabricated document, thus by means of the present Writ Petition, the petitioner is not entitled for equitable relief from this Hon'ble Court. The present writ petition is filed on incorrect, false and by suppression of material facts. It is further submitted that the petitioner is not going to the College at all, as has been alleged by her. It is further submitted that interim order dated 08.04.1997 sent through registered post by the petitioner, as she did not wanted to go to the college. The claim of the petitioner as validly appointed teacher in the Institution w.e.f. 1982 is totally wrong, which is evident from the Writ Petition itself. The petitioner instead of marking attendance in the Institution of the answering respondent, has marked his attendance in the office of the District Inspector of Schools. The petitioner's services were purely on temporary basis in the year 1982. There is no substantive vacancy, on which the petitioner was appointed in the year 1982. The petitioner was never issued any appointment letter at any point of time and that it has been wrongly alleged by the petitioner in the Writ Petition that she has been constantly working in the answering respondent's Institution w.e.f. 1982. It is further submitted that the services of the petitioner on temporary basis against the vacancy for short time in the year 1982. There was no a substantive vacancy, on which the petitioner was appointed in the year 1982. It is pertinent to mention here that it was only on 30.06.2011, that there was a substantive vacancy available to be filed up which can be seen by the certificate issued the Principal of the Kanpur Kanya Mahavidyalaya Inter College, Kanpur.
The petitioner has filed her Rejoinder Affidavit to the Counter Affidavit filed on behalf of respondent no.3 stating that the petitioner filed a Writ Petition earlier which was disposed off vide Judgment /Order dated 26.07.1951, by which Regional Inspectress of Girls School Kanpur was directed to consider the representation relating to regularization of services of petitioner. Subsequently a detailed enquiry took place and it was found that deliberately the management did not issue the appointment letter to the petitioner and even after calling upon the management did not turned up. However the then Principal, Smt. Madhvi Lata Shukla, appeared at the time of enquiry and stated that the petitioner was continuously teaching science subject in the Institution but she failed to give any written affidavit. The enquiry held by the Regional Inspectress of Girls School was final and not challenged till date, as such the order dated 20.01.1994 issued by Regional Deputy Director of Education- IInd, Kanpur became final. The allegation about issuing of appointment letter or any evidence relating to the appointment of the petitioner are false. The record is available with the management but the same has not been filed deliberately. The relevant order passed in various cases by the D.I.O.S., providing joining of various teachers in the office shall be produced at the time of hearing of the case. The order dated 20.1.1994 as well as the direction issued by this Hon'ble Court on 8.4.1997 was complied with after the hard struggle of the petitioner and even the arrears of salary w.e.f. 13.03.1995 to 31.3.1997 have not yet been paid. The Hon'ble Court very specifically directed the opposite parties no.1 to 5 to pay arrears of salary from 3.3.1995 to 31.03.1997 within a period two months from the date of production of certified copy of this order. In the service book prepared her false date of appointment has been shown as 1.4.1997, which clearly goes to show that till date the D.I.O.S. and Management have not complied with the order/ direction dated 08.04.1997. The education authority competent to inquire into the matter had taken the decision on 20.1.1994, which is final. It is specifically mentioned that the management by concealment of facts got approval of a teacher in place of the petitioner. However against the existing vacancy, the petitioner should be adjusted. The salary w.e.f., 13.03.1995 to 1997 was not paid. On an enquiry from the management it is informed that the papers were sent to D.I.O.S. on 5.7.97.
The petitioner has filed her Rejoinder Affidavit to the Counter Affidavit filed on behalf of respondent no.5, stating that She was appointed in the year 1982, in L.T. Grade, against clear vacancy to teach science subject to the students of Class-IXth the Xth and she was working in the institution as the Assistant Teacher till February, 1989. The Committee of Management interfered in the working of petitioner from March, 1989, which is evident to the findings recorded by Regional Joint Director of Education, Kanpur Nagar, in order dated 20.01.1994. The Regional Joint Director of Education has recorded the findings to this effect, after, perusing the entire service book, original service record of the petitioner. However, it is further submitted that the appointment of the petitioner has been made in accordance with law. The petitioner has worked in the Institution from the year 1982 to February, 1989 continuously, thereafter, the Management had stopped taking work from the petitioner with malafide intention only to accommodate another person. The appointment letter of the petitioner was kept with the Management intentionally and with malafide intention, only to harm the petitioner. It is wrong to allege that the appointment letter was issued to the petitioner. The petitioner has not concealed and suppressed the material facts. However, in pursuance of the appointment order, the petitioner worked continuously from 1982 to February 1989 and thereafter in pursuance of the order passed by the Hon'ble High Court dated 08.04.1997. The Management had appointed subsequently another teacher and got approval suppressing the material facts regarding appointment of the petitioner. The intention of the Management was not fair with the petitioner at any point of time. The Management when did permit to put her signature in the attendance register she complained to the office of the D.I.O.S. and he permitted her to put her signature in his office. It is further submitted that Regional Deputy Director of Education conducted a detail enquiry and seen the entire original record of the petitioner, thereafter allowed the claim of the petitioner vide his order dated 21.01.1994 and the order dated 21.01.1994 has not been challenged anywhere so far.
The learned Counsel for the petitioner has argued that as per the order dated 20.01.1994, passed by the Regional Deputy Director of Education, Kanpur, the appointment and services of the petitioner were found to be legal and valid. Clear finding has been recorded that she was appointed on the post of L.T. Grade Teacher in 1981-1982 and she worked upto 1989 and her signatures are present in the attendance register. After 1989, she was prevented from working and another teacher was appointed by the Management and approval was obtained by concealment of correct facts by the Regional Inspectress of Girls School. Therefore, the petitioner was directed to be absorbed on the post of L.T. Grade Teacher. It has been further argued that the orders dated 04.03.1994 and 05.05.1994 passed by the Regional Deputy Director of Education, directing the District Inspector of Schools, respondent no.3, to permit the petitioner to work on her post in the Institution was also not complied illegally by the respondent nos. 3 and 5. The Management of the Institution and the respondent no.3 have prevented the petitioner from joining and working on her post of Assistant Teacher.
The learned Counsel for the petitioner has relied upon the Judgment in the case of Tridip Kumar Dingal and others Vs. State of West Bengal and others, (2009) 1 SCC 768 and has argued that even if the selection of the petitioner was not in accordance with law then she could not have been disturbed after working for more than 7 years in the Institution. He has relied upon the following paragraphs of the aforesaid Judgment, " 48. In fact, it was stated at the Bar that on behalf of the appellants a statement was made before the High Court that appointment of 66 employees may not be disturbed but similar relief could be granted and benefit should be extended to the candidates who had approached the Court. The Court, to that extent, accepted the submission and directed the authorities to consider the cases of those candidates who had obtained requisite 40% marks at written examination and oral test and who could be placed in the merit list along with or above 66 candidates. By taking such view, no illegality can be said to have been committed by the High Court and we see no infirmity in such a direction.
49. In Munindra Kumar Vs. Rajiv Govil, the selection comprised of written test, group discussion and oral interview. The relevant rule fixed 40% of total marks for group discussion and oral interview (20% each). Though this Court held fixation of marks as arbitrary, being on higher side, it refused to set aside selection made on that basis since selection had already been made, persons were selected, appointed and were in service.
50. In Gujarat State Dy. Executive Engineers' Association Vs. State of Gujarat this Court recorded a finding that appointments given under the "wait list" were not in accordance with law. It, however, refused to set aside such appointments in view of length of service ( five years and more).
51. In Buddhi Nath Chaudhary vs. Abahi Kumar appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. "We have extended equitable considerations to such selected candidates who have worked on the post for a long period", said the Court (at SCC p.331, para 6).
52. In M.S. Mudhol (Dr.) Vs. S.D. Halegkar the petitioner sought a writ of quo warranto and prayed for removal of a Principal of a School on the ground that he did not possess the requisite qualification and was wrongly selected by the Selection Committee. Keeping in viw the fact, however, that the incumbent was occupying the office of Principal since more than ten years, thus Court refused to disturb him at that stage.
53. In our considered opinion, the law laid down by this Court in aforesaid and other cases applies to the present situation also. We are of the considered view that it would be inequitable if we set aside appointments of candidates selected, appointed and are working since 1998-1999. We, therefore, hold that the Tribunal and the High Court were right in not setting aside their appointments."
He has further argued that the requirement of advertisement of vacancy in newspapers was not there in the year 1982 because the Judgment in the case of Radha Raizada and others Vs. Committee of Management, 1994 (2) ESC 345 (FB) came later and as per Judgment in the case of Ashika Prasad Shukla Vs. D.I.O.S., Allahabad, 1998 (3) ESC 2006 (All), the requirement of advertisement in two prominent newspapers was not there, even for appointment on substantive post on ad hoc basis.
He has further relied upon paragraph no.22 of the Judgment in the case of Smt. Ram Dulari Devi and others Vs. Joint Director of Education, Varanasi Region and others, (1999) 3 UPLBEC 2069, which is as follows, " 22. The question whether the ratio decided in the case of Ashika Prasad Shukla (surpa) could be attracted in the case of substantive vacancy or not is a question which does not seem to be material, though Mr. Tripathi had contended that Ashika Prasad Shukla (supra) was concerned with short term vacancy. The ratio decided therein with regard to the prospectivity can not be attracted in the case of substantive vacancy does not seems to be sound. Whether the decision deals with substantive or short term vacancy is immaterial, because, it is fact, has dealt with Section 18 and the Removal of Difficulties Order to the extent that it has been so dealt in the case of Radha Raizada (supra) in Ashika Prasad Shukla (supra), no distinction appears to have been made in respect of short term or substantive vacancy. On the face of it, it has laid down a principle of cutting off. Those cases where the approval has been granted to the appointment or whether the appointment is deemed to have been approved has since been protected by the prospectivity of the ratio laid down in the case of Radha Raizada (supra) while exempting all other case. In as much as in the said case the protection is not available where the appointment has neither been approved nor appears as deemed to be approved."
The learned Counsel for the respondent no.5 has relied upon the Judgment dated 02.04.2015, passed in Writ- A No.17722 of 2015, Nand Lal Chaudhary Vs. State of U.P., wherein the Court considered the appointment of a C.T. Grade teacher on a substantive vacancy in L.T. Grade occurring due to promotion of regular incumbent. The Court found that the provisions of Uttar Pradesh Secondary Education (Removal of Difficulties) Order, (First) was not followed and there was no evidence on record to substantiate the same and therefore, this Court recorded the finding that the petitioner has not placed any material before the Court to show whether requisition was sent by the Committee of Management before proceeding to make appointment or any advertisement was made. The Court has further stated that the payment of salary from public fund can not be disbursed on the whims of any authority. It is only to be made after strictly following the procedure prescribed by law.
Further reliance has been placed upon the Judgment in the case of Smt. Renu Singh Versus State of U.P. and others, 2017 (9) ADJ 18 (Lucknow Bench), in support of his contention that the appointment of the petitioner was not in accordance with procedure of law and her engagement was purely temporary. She was never issued any appointment letter and there was no substantive vacancy in the year 1982, when she claims to have been appointed. He has relied upon paragraph no.15 of the aforesaid Judgment, which is as follows, " In the facts and circumstances of the present case, this Court is of the opinion that petitioner has managed to secure appointment contrary to law and has succeeded in stalling attempts to examine its legality/ genuineness. Such continuation for howsoever long would not create any equity in favour of the petitioner. The plea of equity would not be available in a case where initial appointment is a result of manipulation, no vacant post exists, and the petitioner even lacks essential qualification for the post. The argument advanced on behalf of the petitioner, though seems attractive at the first look but must ultimately fail and rule of law would have to be maintained."
Replying to the second argument of the petitioner that the requirement of newspaper advertisement of vacancy was there in 1982 regarding appointment on substantive post, the Counsel for the respondent no.5 has relied upon paragraph nos.5 to 8, of the Judgment, in the case of Julfikar Husain Ansari Vs. State of U.P. and others, 2013 (1) ADJ 80 (DB) which is as follows, " 5. On behalf of the appellant, it was strenuously contended that since the judgment in the case of Radha Raizada (supra) amounted to laying down a new law that even ad hoc appointments must be made after due advertisement in two prominent newspapers, the said Judgment can not have a retroactive effect and the appointment of the appellant can not be held to be illegal only on account of law laid down in the judgment. To buttress the said submission. Learned Counsel placed reliance upon a Division Bench Judgment of this Court in the case of Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad 1998 (3) ESC 2006( All).
6. No doubt, the decision in the case of Ashika Prasad Shukla (supra) settles that law that ad hoc appointment by direct recruitment in a short term vacancy made prior to judgment of a learned Single Judge of this Court dated 03.01.1994 in the case of K.N.Dwivedi Vs. District Inspector of Schools, (1994) UPLBEC 461, which stands supported by judgment dated 12.07.1994 in the case of Radha Raizada (supra), would not be invalid merely because the vacancy was not notified in two prominent newspapers. But, at the same time, it was pointed out that only a short term vacancy was covered by the Second Removal of Difficulties Order and only against such vacancies. The requirement of advertisement in two newspapers arose on account of judicial pronouncements in the case of K.N. Dwivedi and Radha Raizada (supra). In fact the judgment in Ashika Prasad Shukla (supra) has taken note of another judgment of this Court in the case of Sajeev Kumar Vs. District Inspector of Schools, Ghaziabad, 1997 All LJ 33 and in course of distinguishing the same, it has been clarified that the case of Sanjeev Kumar of adhoc appointment by direct recruitment in a substantive vacancy was to be governed by the provisions of the First Removal of Difficulties Order. Clause 5 of First Removal of Difficulties Order itself provides that the Management would, as soon as may be inform the District Inspector of Schools about the details of the vacancies and thereupon the Inspector is required to invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. As per the provisions in the First Removal of Difficulties Order, it is the District Inspector of Schools who would get the best candidate selected on the basis of quality points marks specified in Appendix and forward the names of selected candidates to the concerned institution. The Management has no role except to intimate the vacancy to the District Inspector of Schools in the matter of selection of candidates for direct recruitment in substantive vacancy as per he First Removal of Difficulties Order. Unlike the provisions in the Second Removal of Difficulties Order, 1981 relating to short term vacancy. There is no provision of deemed approval under the First Removal of Difficulties Order.
7. A careful perusal of the Full Bench Judgment in the case of Radha Raizada (supra) also makes it clear tha the provision for advertisement in newspapers and selection through the District Inspector of Schools in respect of substantive vacancies and their filing up through ad hoc appointment by direct recruitment already existed in the First Removal of Difficulties Order and the same had to be followed. The Full Bench saved the vires of Second Removal of Difficulties Order only by reading into it the requirement of advertisement in two prominent newspapers and hence only this part was held to be prospective by the Division Bench in the case of Ashika Prasad Shukla (supra).
8. Since the ad hoc appointment of the appellant through direct recruitment was made against a substantive vacancy and such appointment was required to be made in accordance with the procedure prescribed under the First Removal of Difficulties Order, 1981 which was totally ignored, the writ Court, in our considered view, has rightly held that the appointment of the appellant was a nullity and could not be regularized. No case is made out for treating the judgment in the case of Radha Raizada (supra) prospective in a case of present nature."
The learned Counsel for the respondent no.5 has further argued that the petitioner herself admits that she was not permitted to perform her duties after 1989 by the respondent nos. 3 and 5 and she got salary only in terms of the interim order dated 08.04.1997 of this Court, till it was recalled on 25.07.2014. Therefore, she is not entitled to get any salary, because she has not legally worked in the Institution. She approached this Court belatedly in the year 1997 when she admits denial of work since 1989. Therefore, the writ petition deserves to be dismissed on the ground of latches too.
In reply to this argument of the Counsel for the respondent no.5, the petitioner has relied upon the case of Rishi Kant Sharma Vs. State of U.P. and others, 2011 (6) ADJ Page-1 (DB), wherein it was held in paragraph no.7 as follows, " 7. Third preliminary objection as raised by the appellant - respondent no.4 before the learned Single Judge is regarding long lapse of time in making writ petition. The appellant - respondent no.4 joined the institution on 01st November, 2002 when the writ petition was presented on 14th October, 2003 with the allegation that the respondent no.5 writ petitioner was earlier given to understand that the appellant- respondent no.4 has been appointed by way of transfer and it is only when that he was informed that such appointment has been made by direct recruitment, the writ petition has been filed in this regard, learned Single Judge held that the respondent no.5, writ petitioner can not be said to have slept over his rights nor can it be said that the writ petition suffers from unexplained latches so as to defeat his right under Article 226 of the Constitution of India. Learned Single Jude further distinguished the order of the learned Single Judge dated 22nd November, 2010 passed in Civil Misc. Writ Petition No.38703 of 2006 (Guru Narain Singh Vs. State of U.P. and others) as was relied upon bthe appellant- respondent no.4, by saying in that case there was undue delay and latches of more than two and half years and therefore such writ petition was not entertained on merits."
The learned Counsel for the respondent no.5 has placed before the Court, the Judgment in the case of Surendra Kumar Pandey Vs. District Inspector of Schools, MANU /U.P./0562/ 2007, in support of his argument that the Judgment in the case of Smt. Ram Dulari and others (Supra) relied upon by the Counsel for the petitioner is no more a good law and has been held per incuriam in the aforesaid case as follows:
" 16. Now coming to the decision in Smt. Ram Dulari Devi and Ors. Vs. Joint Director of Education, Varanasi Region, Varanasi and Ors. MANU/UP/1046/1999: (1999) 3 UPLBEC 2069 wherein a Division Bench of this Court in para 7 of the decision has laid down a broad proposition to the effect that decision unless specifically lays down, do not operate retrospectively in order to render all actions taken prior to such decisions void. In this connection it is noteworthy to mention that the aforesaid broad proposition laid down by this Court runs contrary to the decision of Hon'ble Apex Court in Golak Nath's Case. Although the aforesaid decision of Apex Court has been subsequently overruled by Hon'ble Apex Court in Keshwanand Bharti Vs. State of Kerela MANU/SC/0445/ 1973/AIR 1973 SC 1461, but the aforesaid principles of law laid down in Golak Nath's case in respect of prospective overruling has not been touched in Keshwanand Bharti's case rather the same principle has been applied by Hon'ble Apex Court in cases referred herein before and also followed and discussed in Managing Director E.C.I.L., Hyderabad V. B. Karunakar MANU/SC/0235/1994 : 1994 Crl. LJ1229, wherein the Hon'ble Apex Court has reiterated again the view taken in Golak Nath case. Therefore, with all respect to Hon'ble Judges of this Court the aforesaid broad proposition laid down by this Court in Smt. Ram Dulari's case (supra) runs contrary to the decisions of Hon'ble Apex Court and as such held to be per incuriam as given in ignorance of binding precedent, and law declared by the Supreme Court.
17. In this connection it is also necessary to point out that in K.N. Dwivedi Vs. District Inspector of Schools 1994 (1) UPLBEC 461 a learned Single Judge of this Court while holding the provisions providing for ad hoc appointment by direct recruitment against short term vacancy by merely notifying the vacancy on the notice board of the institution to be repugnant to the fundamental right guaranteed by Article 16 of the Constitution gave prospectivity to his judgment and saved the direct appointments already made against short term vacancies by merely notifying the same on the notice board of the institution. And some words have been read in the Statute i.e., Second Removal of Difficulties Order both in K.N. Dwivedi and Radha Raizada's case and it was held that procedure for notifying the short term vacancy can be same as it is for ad hoc appointment by direct recruitment in substantive vacancy under the First Removal of Difficulties Order, therefore, the same is tantamount to amending the statute by reading therein the requirement of public notice of the vacancy in addition to its notice on the notice board of the institution with a view to save the statute from being struck down as violative of Article 16(1) of the Constitution, on one hand and advancing the object of the Act on the other. This question, however, was neither raised nor decided by the Full Bench in Radha Raizada's case and Radha Raizada's case has not overruled the aforesaid previous decision of this Court on the question as to whether the appointment of a teacher by direct recruitment in a short term vacancy by notifying the vacancy on notice board of the institution alone would be void. The aforesaid view taken in K.N. Dwivedi's case has been reiterated by Division Bench of this Court in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and Anr. MANU/UP/0524/1998 (1998) 3 UPLBEC 1722, but the aforesaid decisions were rendered by this Court in respect of direct recruitment on ad hoc basis against short term vacancy and not against substantive vacancy, whereas the case in question pertains to appointment, through direct recruitment on ad hoc basis against substantive vacancy and further no such question arises in this case.
18. In Smt. Ram Dulari Devi's case (supra) while dealing with the controversy in connection of effect of decision rendered by Full Bench in Radha Raizada's case a Division Bench of this Court has held in para 8 of the decision that the Full Bench decision may not reopened an appointment made prior to the Full Bench decision and expose them to scrutiny and cancellation, after appointment having been approved or deemed to have if been approved in case of direct appointment against short term vacancy. Whereas in case of ad hoc appointment against substantive vacancy there being no scope of approval, grant of financial sanction to such appointment without the aid of any interim order passed in a Court proceeding pending after decision in Radha Raizada's case shall be treated to be deemed approval. Such a deemed approval shall also include those cases where financial sanction was granted pursuant to inerim order or otherwise in a proceedings concluded before the decision in Radha Raizada case (supra) making such interim order or direction absolute. In this connection it is necessary to point out that so far as the observations of Division Bench of this Court in context of ad hoc appointment through direct recruitment against short term vacancy is concerned there is no quarrel with the proposition laid down by the Division Bench of this Court as earlier in Ashika Prasad Shukla case and decision rendered by the learned Single Judge in K.N. Dwivedi's case but so far as the observation made by the Division Bench in respect of ad hoc appointment through direct recruitment against substantive vacancy to the effect that such deemed approval shall also include those cases where financial sanction was granted pursuant to the interim order or otherwise in a proceedings concluded before the decision in Radha Raizada's case making such interim order or direction absolute, is concerned in my considered opinion the observations of the Division bench of this Court runs contrary to the decision rendered by the Supreme Court to which I shall refer a little later. Thus the observations made by the Division Bench of this Court to that extent can not be said to be good law and has to be held that the decision rendered as per incuriam."
The learned Counsel for the respondent no.5 has further argued that there is no provision under the statute regarding the attendance of the teacher in the office of District Inspector of Schools. Further the order dated 20.01.1994 is an exparte order and no notice of the proceedings were ever served on the Committee of Management. The Principal of the Institution, Smt. Madhvi Lata Shukla was not the representative of the management and no statement in writing was given by her before the respondent no.2 in support of the case of the petitioner. Therefore, the aforesaid order is not binding on the respondent no.5 and is otherwise also illegal.
After going through the pleadings of the parties and the arguments raised by the Counsel for the parties in support of their cases and the Judgment relied upon by them, the Court feels proper to consider the procedure for appointment on the post of substantive vacancy provided under the statute.
Adhoc appointment on substantive vacancy were to be made in accordance with Section-18 of the U.P. Act No.5 of 1982 as then existing, coupled with the procedure prescribed under the First Removal of Difficulties Order applicable in respect of substantive vacancies. The issue is no longer res-integra and had been subject matter of several decisions to the effect that appointments have to be made after due advertisement and the intimation has to be sent to the Commission for selections. The issue of ad hoc appointments either by way of promotion or direct recruitment under the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 and the relevant law came to the discussed in detailed by the Full Bench of this Court in the case of Radha Raizada & others Vs. Committee of Management, Vidyawati Darbari Girls Inter College & others (supra). The contention raised before the Full Bench was about the right of the Management to continue to make appointments on ad hoc basis and also the procedure required to be followed in this regard. The Full Bench in matters of direct recruitment on ad hoc basis ruled that the procedure prescribed in the First Removal of Difficulties Order, 1981 would be applicable which apart from other conditions requires the advertisement to be made in two newspapers of adequate circulation in the State of Uttar Pradesh and in addition to that names should be called for from the employment exchange and advertisement should be made on the notice board of the Institution.
The second part of the Full Bench aforesaid dealt with appointment against short term vacancies where also the same procedure was held to be applicable.
The said Full Bench decision was tested by the Apex Court in relation to appointment against substantive vacancies and was upheld in the decision of Prabhat Kumar Sharma & others Vs. State of U.P. & others, 1996 (3) UPLBEC 1959. It was also mentioned that the Court was not concerned with short term vacancies in the case before it.
In the case of Radha Raizada (supra), the issue relating to ad hoc appointment, against short term vacancies was taken up and it was held that the procedure prescribed under the Second Removal of Difficulties Order read with the First Order would apply.
The issue in relation to the power of the Management to continue to make appointments on ad hoc basis against a substantive vacancy is only relevant in so far as the case of petitioner is concerned to the extent that the appointment is being claimed prior to 14th July, 1992. It may be put on record that the provisions of Section 18 relating to ad hoc appointments in the Act No.5 of 1982, were deleted on 14.07.1992 and, therefore the issue involved herein survives because the appointment in prior to the said date. The judgment in the case of Radha Raizada (supra) clearly, explains the same.
This issue in relation to the advertisement, in so far as the short term vacancy is concerned, came to be considered by another Division Bench in the case of Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad & Another 1998 (3) UPLBEC 1722. It was held therein that any appointment against a short term vacancy made prior to the decision in the case of Radha Raizada (supra) would not be invalidated, merely because the advertisement had not been made in two newspapers. However, the said decision was in relation to short term vacancies where procedure under the Second Removal of Difficulties Order, 1981 requires advertisement on the notice Board only. It is in this context that the Division Bench in the said case came to the conclusion that appointments against short term vacancies under the Second Removal of Difficulties Order 1981 as the law then existed was to be only advertised on the notice Board. This was the distinction between the First Removal of Difficulties Order 1981 applicable to ad hoc appointments on substantive vacancies and the Second Removal of Difficulties Order, 1981 for short term vacancies. However, the Division Bench held that after the Full Bench decision in the case of Radha Raizada (supra), if any, short term vacancy is to be filled up, then it will have to follow the procedure as per the law laid down therein.
Consequently, the outcome is that any appointment, against short term vacancy prior to the decision in the case of Radha Raizada (supra) has been held to be valid even if the advertisement was not made in newspapers. The decision in the case of Ashika Prasad Shukla (supra) does not appear to have been overruled by any larger Bench.
There is one more issue that was dealt with in the case of Ashika Prasad Shukla (supra) namely, that of prior approval of the District Inspector of Schools before making appointments on ad hoc basis against short term vacancies. The Division Bench therein held that it is correct that the procedure did require an approval from the District Inspector of Schools but further explained that if the appointment had been made, it would be effective only from the date from which approval is granted by the Competent Authority but would not be entirely invalid. To repeat again, the said decision in the case of Ashika Prasad Shukla (supra) was in relation to such appointments against short term vacancies that had been made prior to the decision in the case of Radha Raizada (supra). The ratio of the said decision was laid down with the aid of the jurisprudence on retroactive and prospective applicability of decisions.
In view of the above legal position, the claim of the petitioner, that she was appointed against clear vacancy in L.T.Grade in 1982 to teach Science subjects of Class- IX and X, requires following of the procedure, as per the First Removal of Difficulties Order, 1981 and from the pleadings of the petitioner on record, the compliance of Clause-5 (2) of the same is not found. The aforesaid clause provides that for making ad hoc appointment by direct recruitment, the Management shall inform the District Inspector of Schools, about the details of vacancy and such Inspector shall invite applications from the local Employment Exchange and also through Public Advertisement in at least 2 newspapers having adequate circulation in the State. Paragraph no.5 (3) provides that every application referred to in paragraph no.5(2) shall be addressed to the D.I.O.S., and shall be accompanied by a crossed postal order of Rs.10/- and by self addressed envelop bearing Postal Stamp. Paragraph no.5(4) provides that the D.I.O.S. shall select the candidate on the basis of quality point marks specified in the Appendix. Paragraph-6, provides that the appointment of the teacher as per paragraph no.5 shall be subject to the condition that the candidate must have essential qualification laid down in Appendix-A, Regulation (1), Chapter-II of Intermediate Education Act, 1921, candidate should not be related to any member of the Committee of Management and must be serving the Institution in substantive capacity from before the date (i.e., 31.07.1982) of commencement of the order.
A perusal of the averments in the writ petition do not prove the compliance of the above requirements of the First Removal of Difficulties Order, 1981 in appointment of the petitioner.
Now considering the Case Laws relied upon by the Counsels by the parties, it is to be observed that the reliance of the Counsel for the petitioner on the Judgment of Tridip Kumar Dingal & others (supra) relates to a case where the irregular selection were continued for long time and therefore the candidates who were selected, appointed and were working continuously for a long time were not disturbed by the Apex Court on the ground that they have acquired sufficient experience of the job. In the present case, the petitioner had worked from 1982 to 1989 in the Institution and thereafter on the basis of interim order dated 08.04.1997, he was permitted to be paid her salary of the post w.e.f., 13th March, 1995 to 31st March 1997 and thereafter, month to month salary was directed to be paid to her and she was directed to sign the attendance register maintained at the Institution for teachers. This order was passed by this Court because the Counter Affidavit was not filed by the respondents within the time granted by this Court. After the interim order dated 08.04.1997, a Recall Application was filed by the respondent no.5 on 20.05.1997 and this Court recalled the interim order dated 08.04.1997 by its order dated 25.07.2014. In the meantime, the petitioner did not turned up in the College and alleging that the Management did not permit her to sign the register, claims to have marked her attendance in the office of District Inspector of Schools. However, no application was filed by the petitioner, before this Court complaining that in pursuance of the interim order dated 08.04.1997, she is not being permitted by the Management to put her signature on the attendance register nor she filed any contempt application. This conduct of the petitioner shows that she enjoyed the salary as per the interim order dated 08.04.1997 till it was recalled by this Court vide its order dated 25.07.2014. The learned Counsel for the petitioner has informed that he has preferred a Special Appeal against the order dated 25.07.2014 of this Court, which is pending and no interim order has been passed therein in favour of the petitioner. Hence, the Case Law cited by the petitioner is distinguishable on facts.
The reliance upon the Judgment in the case of Ashika Prasad Shukla (supra) and the case of Smt. Ram Dulari Devi & others (supra) by the Counsel for the petitioner is also incorrect in view of the facts of the present case as clear from the discussions made in Julfikar Husain Ansari (supra) and Surendra Kumar Pandey (supra). As discussed above, the Judgment of the Full Bench in the case of Radha Raizada does not protects the ad hoc appointments on substantive post, which have been made without following the procedure of appointment given in the First Removal of Difficulties Order, 1981. The Judgment of Aashika Prasad Shukla only saves the irregular appointment under the Second Removal of Difficulties Order, 1981 and therefore, the petitioner's reliance on the same is misconceived. The Judgment in the case of Smt.Ram Dulari Devi, which held that the Full Bench in Radha Raizada did not made any distinction between short term and substantive vacancy, is held not to be a good law by this Court in a subsequent decision in the case of Surendra Kumar Pandey (supra).
The reliance of the learned Counsel for the petitioner on the Judgment in the case of Rishi Kant Sharma (supra) regarding the explanation for latches in filing of the writ petition is distinguishable on facts. The case cited related to a delay of 2 and ½ years while in the present case, the petitioner approached this Court after about 6 years, after she was prevented from working by the respondent no.5.
This Court has clearly held in the case of Nand Lal Chaudhary (supra) and Renu Singh (supra) that an appointment against the Law does not attracts equity when the initial appointment is illegal and the money from the State Exchequer can not be permitted to be paid to such employees.
Therefore, the writ petition is devoid of merits and is hereby dismissed. No order as to costs.
Order Date :- 28.02.2018 Aks.