Allahabad High Court
Pramod Kumar Singh vs State Of U.P. And Others on 25 January, 2010
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
Reserved
Civil Misc. Writ Petition No.45643 of 2006
Pramod Kumar Singh Versus State of U.P. & others
Hon'ble Sudhir Agarwal, J.
1. The petitioner, Pramod Kumar Singh, aggrieved by the order dated 29.04.2006/09.05.2006 (Annexure No.16 to the writ petition) passed by the District Inspector of Schools, Azamgarh (hereinafter referred to as the 'D.I.O.S.') has invoked jurisdiction of this Court under Article 226 of the Constitution of India by filing the present writ petition and has sought a writ of Certiorari for quashing of the aforesaid impugned order and also a writ of Mandamus directing the respondents to pay salary to the petitioner on regular basis till his continuation as adhoc Lecturer (English) against the short term vacancy and also to pay arrears of salary w.e.f. 01.10.1994.
2. The facts in brief as borne out from the writ petition are as follows:
3. Panchayat Inter College, Gaura Meh Nagar, District Azamgarh (hereinafter referred to as the Intermediate College) is recognized by the Board of High School and Intermediate under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act"). For the purpose of payment of salary, the staff of the college is governed by the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred as "1971 Act"). It is also not disputed by the parties that for recruitment of teachers in the college, provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 1982 Act) are applicable.
4. On 30.06.1991, one Bali Ram Singh, working as Principal of the college retired on attaining the age of superannuation. Thereafter one Narvadeshwar Singh, Lecturer (English) was made to officiate as Principal on 01.07.1991 till regular selection/appointment on the post of Principal is made by the Secondary Education Services Selection Board (hereinafter referred to as the Selection Board). It is said that in the resultant short term vacancy of Lecturer (English) one Ram Ashish Pathak was appointed on adhoc basis, who was granted approval by D.I.O.S. by letter dated 17.04.1993. Sri Pathak for one or the other reason did not continue with his job and the vacancy occurred again, which was advertised by the Committee of Management in the daily newspaper 'Ranturya' on 26.09.1993 inviting applications for making adhoc appointment on the post of Lecturer (English). Copy of the said advertisement is annexed as Annexure No.3 to the writ petition. It is said that the petitioner was issued a letter of appointment on 06.10.1994, appointing him as Lecturer (English) and intimation of such appointment was given to D.I.O.S. vide Manager's letter dated 07.10.1994, copy whereof is filed as Annexure No.4 to the writ petition. The grievance of the petitioner was that neither the appointment was approved by D.I.O.S. nor any order was passed for making payment of salary. In these circumstances after making certain representations, the petitioner filed Writ Petition No.30741 of 1996, which was dismissed by an Hon'ble Single Judge on 08.10.1996. Being aggrieved, the petitioner preferred Special Appeal No.17 of 1997, which was decided on 07.08.2001 with the following directions: "The Special Appeal is accordingly disposed of following the said view taken by the Division Bench in Special Appeal No.471 of 1995, it will be in the interest of justice to direct that in the event the appellant makes a representation to the District Inspector of Schools, Azamgarh for payment of salary within two weeks from today, the District Inspector of Schools, Azamgarh shall inquire into the matter and pass appropriate orders in accordance with law within two months from date of receipt of said representation. The District Inspector of Schools, Azamgarh while disposing of the representation shall not take into consideration any observation made by the learned Single Judge in his order dated 8.10.1996 in writ petition No.30741/1992. The Special Appeal is allowed to the extent indicated above and stands disposed of with the aforesaid observations".
5. Thereafter, the petitioner made a representation to D.I.O.S. on 08.03.2002 and it is this representation, which has been decided by D.I.O.S. by the impugned order rejecting his claim for payment of salary by holding that his appointment was illegal.
6. It is contended by Sri Rakesh Pandey, learned counsel for the petitioner that the appointment was in accordance with the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second Order), 1981 (hereinafter referred to as the 'Second Order') and therefore, the D.I.O.S. has erred in law in declining to make payment of salary to the petitioner by holding his appointment illegal. It is further submitted that as a matter of fact, the petitioner is discharging his duties as Lecturer (English) in the College since 1994 and therefore, it is illegal and arbitrary on the part of D.I.O.S., (the respondent no.2) to deny financial approval to the appointment of the petitioner for payment of salary from the State Exchequer under the provisions of 1971 Act.
7. On behalf of Respondents No.2 & 3, a counter affidavit has been filed sworn by one Sri Mahendra Kumar Mishra, Account Officer, posted in the office of D.I.O.S. It is said in brief that the entire documents sought to be relied by the petitioner for justifying his appointment are unreliable, since neither they mention any date or dispatch number nor in fact, such papers were ever received in the office of the respondent. It is further stated that the appointment of the petitioner has not been made in accordance with law since there was no vacancy of Lecturer (English) in the College and, therefore, the petitioner has rightly been held not entitled for salary from the State Exchequer.
8. I have heard Sri Rakesh Pandey, learned counsel for the petitioner, learned Standing Counsel for the Respondents No. 1, 2 & 3 and perused the record.
9. The question as to whether the documents were sent by the Management of the College to the Respondent No.2 and whether they were received in his office or not, apparently are disputed questions of fact. However, before coming to this aspect of the matter and to see whether it is at all necessary to look into the question, in my view, it would be appropriate to consider first whether the petitioner was validly appointed, as claimed, on the post of Lecturer (English) on ad hoc basis against the alleged short term vacancy, assuming for the moment that there exists a short term vacancy on the post of Lecturer (English) in the College, though it has been seriously disputed by the Respondents No.1, 2 & 3.
10. The other questions would obviously depend if the question regarding the validity of the appointment is answered in favour of the petitioner since this is the basic question to be considered in all such matters where incumbent has approached this Court seeking a writ of mandamus commanding the respondent for the payment of salary. The right to obtain such a Mandamus precedes with the condition that the incumbent has been validly appointed on the post and has a right to claim salary from the respondent.
11. It is not disputed that the Principal of the College having retired on 01.07.1991, one Narvadeshwar Singh, who was Lecturer (English) was promoted on officiating basis as Principal of the College in the year 1991 itself. The Committee of Management treating as if a short term vacancy has arisen on the post of Lecturer (English) proceeded to make adhoc appointment on the said post. Relevant documents in this regard have not been placed on record to show as to how and in what manner Ram Ashish Pathak was appointed as Lecturer (English) on adhoc basis but it appears that his adhoc appointment was approved by D.I.O.S. vide letter No.26365/199394 dated 17.04.1993. Sri Ram Ashish Pathak, however, it appears, could not join the institution for the reasons not on record but it is his complaint dated 29.07.1993 that the management was not permitting him to join which was forwarded on 05.08.1993 by the District Magistrate, Azamgarh to the management seeking report. The D.I.O.S. sent letter dated 30.07.1993 (Annexure No.2 to the writ petition) seeking comments from the Manager of the College in this regard. It further appears that thereafter, one Writ Petition was filed by one Dayanand Singh challenging the appointment of Ram Ashish Pathak and therein an interim order was passed on 16.09.1993 by this Court.
12. I have mentioned these facts only to stress upon the facts that the petitioner's claim for appointment on the post of Lecturer (English) on adhoc basis could not have been in consideration before any of the authorities at least till 30.07.1993 and in any case, till 16.09.1993 when this Court passed an interim order in the writ petition filed by Dayanand Singh as has been mentioned in paragraph no.6 of the counter affidavit filed by the respondents no.2 & 3.
13. The petitioner's claim is that vacancy of Lecturer (English) was advertised afresh vide advertisement, a copy whereof has been filed as Annexure No.3 to the writ petition. The advertisement was published in Daily Newspaper 'Ranturya', Azamgarh on 26.09.1993. He has reiterated the same in written submissions also, which has been submitted through his counsel Sri Rakesh Pandey. However, I find several reasons for discarding to rely upon the advertisement purported to be made for adhoc appointment on the post of Lecturer (English). Firstly, language of the said advertisement shows that it was not an advertisement for the post of Lecturer (English). It does not mention the designation at all. The educational qualification mentioned therein being only B.A. (English) along with Sociology, meaning thereby, it could not have been educational qualification for Lecturer (English) for which, the essential qualification included a Master's Degree besides experience. Further, the date of interview mentioned in Annexure No.3 is 06.10.1994 and the applications were invited within a week. It is difficult to comprehend that an advertisement said to be published on 26.09.1993 may fix date of interview after more than one year of its publication i.e. 06.10.1994. Apart from these technicalities even if, I treat that the date of advertisement mentioned in paragraph no.9 of the writ petition as 26.09.1994 instead of 26.09.1993, even then there are some other aspects, which persuade to this Court not to rely on the above document for the purpose the same has been relied by the petitioner. Annexure No.4 is a letter dated 07.10.1994, which is stated to have been sent by the Manager of the College to D.I.O.S. communicating about the appointment of the petitioner as Lecturer (English). A perusal of the documents appended with the above letter shows on page 33 of the writ petition experience about which it is mentioned that the petitioner is imparting education to Intermediate classes in English subject in the college itself since August, 1993. On one hand, it is the own case of the petitioner that Ram Ashish Pathak was appointed as Lecturer (English) on adhoc basis against the short term vacancy in the year 1993 and he left the institution after some time. Further, that the D.I.O.S. upto 30.07.1993 has found that Ram Ashish Pathak was not allowed by the college to discharge his duties as Lecturer (English) and his appointment was stayed by this Court on 16.09.1993 as stated by the respondents no.1, 2 & 3 in paragraph no.6 of the counter affidavit, I find it difficult and failed to understand as to how and in what circumstances the petitioner could have given an opportunity to take Intermediate classes in the subject of English in August 1993, when Ram Ashish Pathak was already there. Further the advertisement clearly mentions two year's experience of imparting education to High School and Intermediate classes. Page 33 of the writ petition shows that the petitioner passed B.A. in 1990 and M.A. in 1992 and the only experience he claimed for himself was of imparting education to Intermediate classes in the subject of English since August, 1993 which admittedly did not fulfill the experience qualification as prescribed in the advertisement.
14. Therefore, the story set up by the petitioner that after the vacancy was advertised he was duly selected and possess requisite qualification does not inspire any confidence. In the light of the discussion made above, I find no hesitation in discarding the same.
15. Now, it would also be relevant to consider whether the procedure for adhoc appointment against the short term vacancy was at all followed or not. The process for recruitment as claimed by the petitioner in his case commenced admittedly after 06.08.1993. In Radha Raizada Vs. Committee of Management, 1994(3) U.P.L.B.E.C., 1551, in order to find out the procedure applicable for adhoc appointment of a teacher in a Secondary Institution under 1982 Act, this spilited the period in three stages.
1.From 31.07.1981 to 13.07.1992 2.14.07.1992 to 06.08.1993 3.07.08.1993 to onwards
16. With reference to the third stage which is admittedly applicable in the present case also, it was held by the full Bench in Radha Raizada (Supra) that in view of Section 16 as substituted by U.P. Act No.1, 1993, no adhoc appointment under Section 18 can be made and, therefore, the only power and procedure for making adhoc appointment available is prescribed under the Removal of Difficulties Order and not otherwise. The Apex Court considered the question as to whether the procedure laid down in the Removal of Difficulties Order is mandatory or not. In Prabhat Kumar Sharma & others Vs. State of U.P. & others, A.I.R. 1996 SC 2638 the Apex Court held that the procedure for adhoc appointment under the Removal of Difficulties Order is mandatory and if the said procedure is not observed strictly, the appointment, if any, shall be 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, J.T. 2009(10) S.C. 309.
17. Just to have a glance over the procedure prescribed in the Second Order, it would be appropriate to reproduce Clause 2 thereof.
2. Procedure for filing up short term vacancies.(1) If short term vacancy in the post of a teacher, caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the management of the institution, by promotion of the permanent senior most teacher of the institution, in the next lower grade. The management shall immediate inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.
(2)Where any vacancy referred to in clause (1) cannot be filled by promotion, due to nonavailability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualification, it shall be filled by direct recruitment in the manner laid down in clause (3).
(3)(i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution along with the particulars given in Appendix "B" to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No.Ma1993/XV7(79)1981, dated July 1981 hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of institution.
(ii) The names and particulars of the candidates selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.
(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.
(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidates and an oder of appointment shall be issued under the signature of the Manager.
Explanation For the purpose of this paragraph
(i) the expression "seniormost teacher" means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained graduate (L.T.) grade or Trained under graduate (C.T.) grade or J.T.C. or B.T.C. Grade as the case may be;
(ii) in relation to institution imparting instructions to women, the expression 'District Inspector of Schools' shall mean the Regional Inspectress of Girls' Schools;
(ii) shortterm vacancy which is not substantive and is of a limited duration.
18. There is nothing on record to show that before appointing the petitioner, the procedure laid down is sub paras 1, 2 & 3 of para 2 of Second Order was observed. In any case from the record at least this much is clear that sub paras (2, 3 & 4) have not at all been followed, inasmuch as before seeking prior approval of the D.I.O.S., the appointment of the petitioner, as he claimed, was made by the management. The petitioner has said that the interview took place on 06.08.1994 and the petitioner was issued a letter of appointment on the same day. Intimation to D.I.O.S. seeking his approval sent on 07.10.1994. The question, therefore, that his appointment should be deemed to be approved by D.I.O.S., as referred to in sub para 2(3) of Second Order does not arise since no letter seeking approval sent before appointment. The effect of non compliance of the provisions pertaining to "prior approval" in para 2(2) and 3 of Second Order has been considered in detail by this Court by a Division Bench (in which I was also a Member) in Surendra Kumar Srivastava Versus State of U.P., 2007(1) ESC 118 and the Court has held as under: "Where a statute uses the term "prior approval"
anything done without prior approval is nullity. Where a statute employs expression "approval", however, in such cases subsequent ratification can make the act valid."
19. The counsel for the petitioner could not place anything which may persuade this Court to take a different view. Even otherwise, the judgment of Division Bench is binding on this Court. The above discussion, therefore, makes it clear that the very appointment of the petitioner which he has made the basis for seeking direction for payment of salary is illegal, void ab initio. I do not find any justification to direct the respondent to pay salary to the petitioner who has no right to hold the post and claim salary.
20. In view of above, the other questions as to whether the documents were actually received in the office of the D.I.O.S. or not becomes academic and need not be answered.
21. Lastly, Sri Pandey, learned counsel for the petitioner submits that the petitioner is working for the last 14 years and, therefore, is entitled for salary. Once it is clear that the appointment of a person is not in accordance with law, the liability for payment of salary under 1971 Act cannot be fasten upon the State Exchequer to attract the provisions of 1971 Act. Where the appointment is not made in accordance with law, the provisions pertaining to the liability of payment of salary from the State Exchequer cannot enforced. At the best, it can be said that the petitioner, if has worked under the contract with the Committee of Management of the College, may claim salary from the management since he has worked under the orders of the management, by taking such recourse as is available in law but for such kind of appointment which does not follow procedure prescribed in law, the provisions pertaining to the payment of salary governed by the statute cannot be made to apply.
22. The writ petition is, accordingly, dismissed.
23. There shall be no order as to costs.
Date:25.1.2010 pks