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2001 DIGILAW 501 (ALL)

SURYA PRAKASH OJHA v. DISTRICT MAGISTRATE, BALLIA

2001-05-17

G.P.MATHUR, M.A.KHAN

body2001
G. P. MATHUR, J. ( 1 ) THIS special appeal is directed against the judgment and order dated 16. 11. 1999 of learned single Judge by which the writ petition filed by the appellant was dismissed. ( 2 ) THE case set up by the appellant in the writ petition, in brief, is that a substantive vacancy of an L. T. grade teacher occurred In the institution represented by respondent No. 4. The committee of management sent a requisition to the Commission through proper channel on 15. 3. 1991 and as no regular appointment was made, it advertised the post in a newspaper and after holding a selection on 10. 7. 1991, issued an appointment order in favour of the petitioner on 15. 7. 1991. The papers were also sent to the District Inspector of Schools. Ballia, who granted his approval on 30. 7,1991, The appellant claims that he joined the institution on 20. 7. 1991. However, the District magistrate, Ballia, passed an order on 2. 8. 1991 directing the District Inspector of Schools and also the Accounts Officer in his office not to make any payment of salary to the appellant. It was this order which was challenged in the writ petition and a further prayer was made that respondent Nos. 2 and 3 may be commanded to pay salary to the appellant. ( 3 ) DR. R. G. Padia, learned counsel for the appellant, has strenuously urged that the payment of salary to a teacher in an educational Institution is entirely within the domain of the District inspector of Schools and the District Magistrate has absolutely no jurisdiction to intervene in the matter and to pass an order directing that salary should not be paid to the appellant. ( 4 ) THE averments made in paragraphs 3 to 7 of the writ petition show that there was a substantive vacancy in the institution and the appellant was appointed after the post had been advertised and the selection was made by the committee of management itself on 10. 7. 1991. The appointment order was Issued by the committee of management on 15. 7. 1991 and it is thereafter, that the district Inspector of Schools. Ballia, granted his consent (W^lfa) by his order dated 30. 7. 1,991. A copy of this order has been filed as Annexure-3 to the writ petition. 7. 1991. The appointment order was Issued by the committee of management on 15. 7. 1991 and it is thereafter, that the district Inspector of Schools. Ballia, granted his consent (W^lfa) by his order dated 30. 7. 1,991. A copy of this order has been filed as Annexure-3 to the writ petition. The procedure for appointment at the relevant time in a substantive vacancy has been given in the U. P. Secondary education Services Commission (Removal of Difficulties) Order. 1981. This Order clearly provides that the management has to give Information about the vacaney to the District Inspector of Schools who Is to invite applications from employment exchange and also through public advertisement in at least two newspapers having adequate circulation in U. P. the selection of a candidate has to be done on the basis of quality points specified in the appendix as per paragraph 5 of the Order. Therefore, the entire selection has to be done by the District Inspector of Schools and the committee of management of the institution has no authority at all either to advertise the vacancy or make any kind of selection. In fact, the Removal of Difficulties Order. 1981. (first order) does not contemplate grant of any approval or consent by the District Inspector of Schools as the entire selection process is done by him. In Radha Raizada v. Committee of Management. 1994 (3) UPLBEC 1551 , a Full Bench has held that the appointment of a teacher on substantive vacancy has to be done by the District Inspector of Schools himself in the manner provided In the First Removal of Difficulties Order. On the own showing of the petitioner, the procedure prescribed in the said Removal of Difficulties Orders was not at all followed and he was selected and appointed by the committee of management which has no such authority. Therefore, the alleged appointment of the petitioner by the committee of management is wholly void and confers no right upon him. The District Inspector of Schools also committed manifest error of law in granting his sanction lgefr to the appointment of the petitioner when the same was void ab initio. The order passed by the District Inspector of Schools is nullity in the eyes of law. The District Inspector of Schools also committed manifest error of law in granting his sanction lgefr to the appointment of the petitioner when the same was void ab initio. The order passed by the District Inspector of Schools is nullity in the eyes of law. ( 5 ) IN a matter relating to the payment of salary to a teacher, normally the District Magistrate has no role to play, and it is for the educational authorities to examine the -matter and pass appropriate orders. The record shows that the District Magistrate passed a general order on 2. 8. 1991 directing the Accounts Officer not to make payment of salary to the new appointees until further orders. In case the order of the District Magistrate is quashed, the result would be that the order passed by the District Inspector of Schools on 30. 7. 1991 shall revive. As shown earlier, the appointment of the petitioner and also the order dated 30. 7. 1991 passed by the district Inspector of Schools are wholly illegal. It is well-settled that this Court under Article 226 of the Constitution would not quash an order evert though illegal, if the result of the same is to restore an illegal order. If the prayer made by the appellant in the writ petition Is granted, it would amount to giving legal sanction to a wholly Illegal appointment and an illegal order of the district Inspector of Schools. We are, therefore, clearly of the opinion that the learned single judge was perfectly right in dismissing the writ petition. ( 6 ) IN the result, we find no merit in this special appeal which is dismissed summarily at the admission stage. .