Allahabad High Court
Vijai Nath vs State Of U.P. & Others on 6 April, 2012
Author: Arun Tandon
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 17357 of 2012 Petitioner :- Vijai Nath Respondent :- State Of U.P. & Others Petitioner Counsel :- Mahendra Upadhyay Respondent Counsel :- C.S.C. Hon'ble Arun Tandon,J.
Notice on behalf of respondents no. 1 to 4 has been accepted by the learned Standing Counsel. Issue notice to respondents no. 5, 6 and 7 fixing 30.04.2012 as the date.
Steps may be taken within a week from today by speed post.
All the respondents may file counter affidavit by the next date fixed.
This petition is a classic example as to how between a fraudulent appointee, officers of the State and the Committee of Management of a private recognized aided Intermediate College, public money is being defrauded. The facts on record are as follows :
Respondent no. 7 (Abhaya Nath Yadav) claimed to have been appointed in the institution i.e. Indira Gandhi Uchchatar Madhyamik Vidyalalya, Jaswal Bazar Rajabari, Gorakhpur on the post of Clerk. The papers qua his appointment were transmitted to the Regional Level Committee. The Regional Level Committee by means of the order dated 16.05.2007 held that his appointment was contrary to the provisions of Regulation 101 of Chapter III of the Regulations framed under the Intermediate Education Act, 1921 (herein after referred to as the Act, 1921), therefore, disapproved and cancelled the appointment. It was recorded that there were 25 persons working on Class III post in various institutions in the district on compassionate ground against supernumerary post.
This order was challenged by respondent no. 7 by means of Civil Misc. Writ Petition No. 27834 of 2007. The writ petition was got dismissed as withdrawn on 16.11.2007, meaning thereby that the order dated 16.05.2007 became final.
The Director of Education intervened and vide letters dated 04.06.2007 and dated 06.07.2007, he asked the District Inspector of Schools for his comments. On that basis the Regional Level Committee on 23.06.2008 with the changed Chairman i.e. Joint Director of Education passed an order granting approval to the said appointment of respondent no. 7. This order does not even refer to the order of the High Court whereby the writ petition was got dismissed as withdrawn. Under which provision review could be made by the Regional Level Committee is also not known. On the basis of the said order, the District Inspector of Schools, Gorakhpur passed an order on 29.07.2008 sanctioning salary in favour of respondent no. 7.
The Principal of the institution made a complainant along with other employees of the same institution that the appointment of respondent no. 7 is a fraud, no resolution of the Committee of Management was ever passed for his appointment nor direct recruitment could be resorted to as there was only one post of Clerk in the institution and it was required to be filled by way of promotion. The respondent authorities did not act upon the complaints for the reasons best known to them.
The present petitioner, who was working as Class IV employee in the institution and was one of the complainant filed Civil Misc. Writ Petition No. 25618 of 2010 before this Court. The High Court on 06.05.2010 called upon the Joint Director of Education to appear before the Court and to explain as to how even after the writ petition was dismissed by this Court, salary has been released in favour of respondent no. 7 and how could the Regional Level Committee issued a fresh order of approval.
On receipt of the notice of this Court the Regional Level Committee met again under the Chairmanship of same Joint Director of Education and this time vide resolution dated 24.05.2010 decided to recall its order dated 23.06.2008 after taking note of the earlier order dated 16.05.2007 and the order of the High Court dated 16.11.2007.
Writ Petition No. 25618 of 2010 came up for consideration before this Court on 25.05.2010 on which date the Standing Counsel made an statement that the order of approval has been recalled and the loss caused to the State Government shall be recouped within two months in accordance with law by taking appropriate action against all concerned. The writ petition was disposed of after noticing the said statement by following order :
?Standing Counsel has filed an affidavit stating that the order impugned in the present writ petition has been withdrawn. In view of the aforesaid the writ petition has become infructuous.
Standing Counsel, on instructions, has stated that the illegal salary paid shall be recovered from the responsible and the loss caused to the State Government shall be recouped within two months by taking appropriate action in accordance with law against the persons concerned.
In view of the aforesaid the writ petition is disposed of subject to the statement made?.
The Secretary (Secondary Education) with reference to the statement recorded above on 16.12.2010 passed a detailed order holding therein that payment of salary to respondent no. 7 was patently illegal and that recovery should be made from all the officers and the persons responsible after identifying them. He also recommended that suitable departmental proceedings be initiated against the officers of the department, within fifteen days.
The District Inspector of Schools on 24.09.2010 held that the Manager of the institution was responsible for illegal appointment of respondent no. 7 and, therefore, directed that a sum of Rs.1,89,895/- be recovered from the Manager of the institution and for the purpose a recovery certificate was issued to the Collector, District Gorakhpur on 18.09.2010.
Against the order of the Single Judge dated 25.05.2010 requiring the authorities to recoup the loss caused, the Committee of Management of the institution filed Special Appeal No. 903 of 2010. The appeal was dismissed vide judgment and order dated 06.10.2010 and it was held that the Committee of Management may raise objections in respect of its liability which shall be considered.
Now the venue of litigation changed from Allahabad to Lucknow. The Committee of Management of the institution filed Writ Petition No. 3979 of 2010 before the Lucknow Bench apparently challenging the recovery which was being effected. The petition was got dismissed as withdrawn on 11.06.2010. Thereafter the Committee of Management filed another writ petition before the Lucknow Bench being Writ Petition No. 6371 of 2010 which was got dismissed as withdrawn with liberty to file fresh.
It was now the turn of respondent no. 7 to file a writ petition before the Lucknow Bench being Writ Petition No. 6885 of 2010 and on 28.09.2010 an stay order is stated to have been granted in favour of respondent no. 7. Thereafter Contempt Petition No. 3056 of 2010 was filed and the State is stated to have paid a sum of Rs.9800/- to respondent no. 7 for absolving itself of the contempt.
The recovery of the Committee of Management hangs in balance because of such litigation and further it appears that the Secretary who had recommended the action has also gone into slumber.
In view of the above facts, the Court finds it proper to issue following directions :
The Secretary of the State shall file his personal affidavit categorically stating as to why the recovery and disciplinary action has not been taken in terms of the order passed by him on 16.09.2010 till date.
The Director of Education shall file his personal affidavit indicating as to how, once the Regional Level Committee has dis-approved the appointment of respondent no. 7 and his writ petition has got dismissed as withdrawn, could the Director interfere in the matter and issue orders to the Regional Level Committee to reconsideration of the matter.
The Regional Joint Director of Education at the relevant time shall file his personal affidavit disclosing as to how he proceeded to pass the order in his capacity as Chairman on 23.06.2008.
The Manager of the Committee of Management shall file his personal affidavit indicating as to how appointment by direct recruitment could be resorted to when the vacancy was within the promotional quota. The entire papers pertaining to appointment of respondent no. 7 shall be produced before this Court, on the next date fixed.
Respondent no. 7 shall file his personal affidavit categorically stating that once his writ petition had got dismissed as withdrawn and the order dated 16.05.2007 and the order was permitted to become final, how could he file another writ petition before the Lucknow Bench and obtained an interim order.
All the persons may show cause as to why this Court may not direct that first information report be lodged against all of them for defrauding the public exchequer.
I am also of the opinion that the writ petition which has been filed by respondent no. 7 should be clubbed along with this petition. Since the records of this petition cannot be transmitted to the Lucknow Bench in view of Clause 14 of the Amalgamation Order and the Hon'ble The Chief Justice has the power to transmit the records of the petition pending before the Lucknow Bench to Allahabad. Let this order be placed before the Hon'ble The Chief Justice for orders being passed under Clause14 for transferring the records of Writ Petition No. 6885 of 2010, so that both the writ petitions may be heard together at Allahabad.
Put up as unlisted on 30.04.2012.
Dated :06.04.2012 VR/17357/12