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Allahabad High Court · body

2008 DIGILAW 1875 (ALL)

SHYAM DUTT v. STATE OF U. P.

2008-09-03

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—Heard Shri V.K. Singh, the learned counsel for the petitioner, Standing Counsel for the respondent Nos. 1, 2, 3 and 4, Sri Rakesh Pandey, the learned counsel for the Committee of Management and Sri V.K. Goel and Sri D.S.M. Tripathi, the learned counsels for the respondent No. 6 and Sri Rajendra Pratap, the learned counsel for the petitioner in the connected writ petition. 2. Before coming to the impugned order, it would be necessary to give a brief background which led to filing of the writ petition. 3. On 30.6.1986, a post of lecturer in Sanskrit became vacant in P.D.N.D. Inter College, Chunar in Mirzapur. The said post was advertised and a panel of three persons was recommended by the Selection Committee. It is alleged that the name of the respondent No. 6 was placed at the top of the select panel but by some error, the Committee of Management passed a resolution in favour of one Surendra Narain Pandey and forwarded the papers to the District Inspector of Schools, Mirzapur. The respondent No. 6, raised a protest and submitted a representation before the authorities which remained pending and, in the meanwhile, the District Inspector of Schools granted approval of the appointment of Sri Surendra Narayan Pandey as a lecturer in Sanskrit in the said institution, vide its order dated 12.2.1987. The order of the approval was limited till regularly selected candidate was appointed by the Commission or till 20.5.1987 whichever was earlier. 4. It transpires that no selection was made by the Commission and the appointment of Sri Surendra Narain Pandey lapsed after 20.5.1987. Sri Surendra Narain Pandey filed writ petition No. 14281 of 1987 praying that he may be treated to be in continuous service and that he should be paid his salary. This writ petition was eventually dismissed by a judgment dated 25.1.1989. It was found that Sri Surendra Narayan Pandey was wrongly approved by the Committee of Management and that the respondent No. 6 was placed at serial No.1 of the select panel. The Court further found that no appointment letter was ever issued by the Authorised Controller and that the approval accorded by the District Inspector of Schools to Sri Surendra Narain Pandey would not validate his appointment since no appointment letter was issued to him by the Authorised Controller. The Court further found that no appointment letter was ever issued by the Authorised Controller and that the approval accorded by the District Inspector of Schools to Sri Surendra Narain Pandey would not validate his appointment since no appointment letter was issued to him by the Authorised Controller. The Court, accordingly directed the Management to take fresh steps for an appointment of a lecturer in Sanskrit. 5. It transpires that Sri Surendra Narain Pandey filed a Special Leave Petition before the Supreme Court of India which was also dismissed eventually by an order dated 11.7.1989. During the pendency of the Special Leave Petition, the respondents intimated the Supreme Court that the petitioner had been appointed as a lecturer and, based on this statement, the petitioner was impleaded. It has come on record that the petitioner filed a counter affidavit in the Special Leave Petition before the Supreme Court of India. 6. Pursuant to the dismissal of the writ petition of Sri Surendra Narain Pandey, it transpires that the Management advertised the post afresh. According to the petitioner, the advertisement was made on 28.3.89 and the name of the petitioner was recommended and that the Committee of Management forwarded the papers of the petitioner for necessary approval to the District Inspector of Schools, who by an order dated 3.4.1989, accorded approval and, based on this approval, it is alleged that the petitioner joined w.e.f. 4.4.1989 and, since then, the petitioner is working as a lecturer in the institution till date. 7. On the other hand, the respondents have taken a stand, namely, that the Authorised Controller, pursuant to the dismissal of the writ petition No. 14281 of 1987, the post was advertised on 28.1.1989 and only three persons applied including respondent No. 6 and that the name of the respondent No. 6 was recommended by the Selection Committee and approved thereafter by the authorised controller and that the Authorised Controller issued an appointment letter dated 11.2.1989 but for various reasons, the respondent No. 6 was not allowed to join the institution. 8. There is another aspect of the matter. In the selection proceedings of 1987, the name of the respondent No. 6 as an Assistant Teacher in L.T. Grade was also recommended and since the respondent No. 6 was not appointed as a lecturer in Sanskrit, he was given an appointment as an Assistant Teacher in L.T. Grade. 8. There is another aspect of the matter. In the selection proceedings of 1987, the name of the respondent No. 6 as an Assistant Teacher in L.T. Grade was also recommended and since the respondent No. 6 was not appointed as a lecturer in Sanskrit, he was given an appointment as an Assistant Teacher in L.T. Grade. On the basis of the resignation of one Shri Jai Ram Verma, a lecturer in Psychology, an ad hoc vacancy arose on the post of lecturer and, on this vacancy, the respondent No. 6 was promoted on ad hoc basis by an order dated 3.12.1994, and thereafter, his services as a lecturer was regularized on 23.9.1998 and the Authorised Controller issued a letter of regularization on 25.9.1998. On the other hand, the petitioner’s services is alleged to have been regularized on 7.8.1993 on the post of lecturer. 9. Based on the order of the regularization of 25.9.1998, the respondent No. 6 filed writ petition No. 2400 of 1999 praying that his representation dated 25.11.1994 should be decided by the authority concerned and further prayed for the quashing of the order dated 25.9.1988 issued by the Authorised Controller with regard to his regularization of his services as a lecturer and prayed that his services should be regularized w.e.f. 7.1.1987 or w.e.f. 5.2.1989. The said writ petition was disposed of by an order dated 9.2.1999 directing the authority to decide the representation of the respondent No. 6. 10. Based on the aforesaid direction, the District Inspector of Schools allowed the representation by an order dated 20.4.1999 granting seniority to the respondent No. 6 w.e.f. 7.1.1987. The petitioner alleges that he was not aware of this order but when the respondent No. 6 started receiving a higher salary, he protested and represented the matter before the Authorised Controller as well as to other authorities which remained pending and fell on deaf ears. The petitioner further submitted that the seniority list was published on 31.1.2006 and that he came to know at that stage that the respondent No. 6 has been placed senior to the petitioner. The petitioner alleged that he approached the Authorised Controller, and thereafter, filed an appeal before the Joint Director of Education, Vindhyachal Region, Mirzapur who by the impugned order dated 6.5.2006 rejected the appeal of the petitioner. The petitioner alleged that he approached the Authorised Controller, and thereafter, filed an appeal before the Joint Director of Education, Vindhyachal Region, Mirzapur who by the impugned order dated 6.5.2006 rejected the appeal of the petitioner. The petitioner being aggrieved, has filed the present writ petition for the quashing of the order dated 6.5.2006 passed by the Joint Director of Education as well as prayed for the quashing of the order dated 20.4.1999 passed by the District Inspector of Schools, filed as Annexure 2 to the writ petition. 11. The learned counsel for the petitioner urged that he had no knowledge about the order dated 20.4.1999 passed by the District Inspector of Schools and that he came to know for the first time on 31.1.2006 when he approached the Authorized Controller, and thereafter, filed an appeal. The learned counsel for the petitioner further submitted that the order of the District Inspector of Schools was, patently illegal and without jurisdiction and that the District Inspector of Schools had no power to decide the matter of seniority or regularization, as the matter of seniority or regularization could only be considered and decided by the Joint Director of Education. 12. The learned counsel placed reliance upon the provision of Chapter II Regulation 3 (1) (f) of the Regulation framed under the U.P. Intermediate Education Act. The learned counsel for the petitioner further submitted that the respondent No. 6 under no circumstances could be granted seniority or regularization w.e.f. 7.1.1987 since such appointment came to an end upon the dismissal of the writ petition and further fresh directions were issued by the Writ Court to the Management to make a fresh appointment. 13. On the other hand, Sri V.K. Goel, the learned counsel for the respondent No. 6 submitted that the writ petition was not maintainable against the seniority list. A teacher was required to file an objection before the Committee of Management under Clause (e) of Regulation 3 of Chapter II of the Regulations framed under the Intermediate Education Act and against the decision of the Committee of Management an appeal could be filed under Chapter II Regulation 3(1)(f) of the Intermediate Education Act before the Joint Director of Education. The learned counsel for the respondent submitted that in the present case, no objection was filed by the petitioner before the Committee of Management and that an appeal was filed straightaway before the Joint Director of Education against the seniority list which was not maintainable. Consequently, the appeal filed by the petitioner was not maintainable. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of this Court in Rajendra Singh Srivastava v. Joint Director of Education, Meerut and others decided on 9.7.2008 in writ petition No. 28017 of 1999, in which it was held that in the absence of any decision being taken by the Committee of Management under Regulation 3(1)(e) of Chapter II of the Regulations framed under the Intermediate Education Act, the appeal filed before the Joint Director of Education under Regulation 3(1)(f) was not maintainable. 14. The learned counsel for the respondents further submitted that in view of the averments made by the petitioner in paragraph 41 to 45 and 51 and 52 of the writ petition, the petitioner was aware of the seniority list from 31.12.2000 onwards when the seniority list was published for the first time and that no action was taken by the petitioner to challenge the said seniority list. Consequently, at this stage, after six years, it was not open to the petitioner to challenge the order of the District Inspector of Schools dated 20.4.1999 which had become final and was not open for a review. The learned counsel for the respondents submitted that the writ petition should be dismissed on the ground of laches. 15. The learned counsel for the respondent No. 6 further submitted that the initial appointment of the petitioner was illegal and that there was no valid appointment letter in his favour and that by some forgery or manipulation, the petitioner started working without a valid appointment letter. The learned counsel for the respondent further submitted that in view of the fraud committed by the petitioner, he was not entitled to challenge the seniority list since fraud vitiate everything. The learned counsel for the respondent further submitted that in view of the fraud committed by the petitioner, he was not entitled to challenge the seniority list since fraud vitiate everything. The learned counsel for the petitioner submitted that the question of the validity and the legality of the appointment of the petitioner could be looked into by the Writ Court, being collateral proceedings, and that, if the Court found that there was something amiss in the appointment of the petitioner as a lecturer, the Court should order a C.B.I. enquiry and dismiss the writ petition with cost. In support of his submission, the learned counsel for the respondent No. 6 placed reliance upon a decision of the Supreme Court in A.V. Papayya Sastry and others, 2007 (4) SCC 221 and Tanna & Modi v. C.I.T., Mumbai XXV and others, 2007(7) SCC 434 . 16. The learned counsel for the respondent No. 6 further submitted that since the appointment of the petitioner was made dehors the rules in gross violation of the Rules and even though the District Inspector of Schools had subsequently granted approval to the petitioner, the same would have no effect. In support of his submission, the learned counsel for the respondent No. 6 placed reliance upon a decision in Dr. Umapati Upadhyaya v. Chancellor, Sampurnanand Sanskrit Vishwavidyalaya and others, 2002(1) ESC 415; Doiwala Sehkari Shram Samvida v. State of Uttaranchal and others, 2007(1) AWC 494 (SC) and State of U.P. v. Neeraj Awasthi and others, 2006(1) SCC 667 . 17. The Respondent No. 6 further filed a supplementary counter affidavit indicating that before the Supreme Court an affidavit was filed by Sir Omkar Nath Dwivedi on behalf of the Authorised Controller/respondent No. 5, it is alleged that Sri Omkar Nath Dwivedi was never employed by the institution and was also not a member of the Committee of Management and that Sri Omkar Nath Dwivedi was a lecturer in another College, and therefore, it appears that the counter affidavit filed before the Supreme Court was probably manipulated by the petitioner. 18. Respondent Nos. 2, 3 and 4 have also raised similar pleas in their counter affidavit, namely, that the petitioner’s appointment was illegally made and that no appointment letter was in fact issued. However, in paragraph 15 of the counter affidavit, the respondents admitted that the salary was being paid to the petitioner. 19. 18. Respondent Nos. 2, 3 and 4 have also raised similar pleas in their counter affidavit, namely, that the petitioner’s appointment was illegally made and that no appointment letter was in fact issued. However, in paragraph 15 of the counter affidavit, the respondents admitted that the salary was being paid to the petitioner. 19. The learned counsel Sri Rakesh Pandey, for the Committee of Management/Authorised Controller also stated that during the course of filing of the counter affidavit, it came to their knowledge that the appointment of the petitioner was invalid and dehors the Rules and that the petitioner had never applied pursuant to the advertisement dated 28.1.1989 and that his name was not found in the select list of 5.2.1989 and that the then Authorised Controller had issued an appointment letter in favour of the respondent No. 6 and that the Management is now proposing to take action against the petitioner. The learned counsel, however, admitted on a query being placed by the Court that the petitioner is working as on date and is drawing a salary from the State Exchequer. The learned counsel, however, further submitted that the seniority list and the order of the District Inspector of Schools should not be disturbed at this stage and in support of his submission, the learned counsel placed reliance on a decision of the Supreme Court in B.V. Sivaiah and others v. K. Addanki Babu and others etc., JT 1998 (5) SC 96. 20. There is another writ petition No. 9223 of 2006 filed by another lecturer for the quashing of the seniority list dated 31.1.2006. 21. According to the petitioner, he was not aware of the seniority list, as it was never issued by the Principal or by the Authorised Controller and that it was first published on 31.1.2006. The petitioner further submitted that when respondent No. 6 started receiving a higher pay scale, he protested and made a representation to the authorities and also approached the Authorised Controller when the seniority list was published on 31.1.2006. The petitioner approached the authorised controller and then filed an appeal before the Joint Director of Education. On the other hand, the learned counsel for the respondents strongly urged that the writ petition was belated and should be dismissed on the ground itself. The petitioner approached the authorised controller and then filed an appeal before the Joint Director of Education. On the other hand, the learned counsel for the respondents strongly urged that the writ petition was belated and should be dismissed on the ground itself. The respondents submitted that the petitioner was aware of the seniority list from the year 1999 onwards, and he did not stir in the matter and only protested in the year 2006 by filing an appeal straightaway before the Joint Director of Education, which appeal was not maintainable under Chapter II Regulation 3 of the Regulations framed under the Intermediate Education Act. The learned counsel specifically placed reliance on paragraph 40 to 45 and paragraph 50 to 52 of the writ petition. Upon perusal of the paragraph 41 to 45 of the writ petition, it could not be deciphered that the petitioner was aware of the seniority list. A specific allegation has been made by the petitioner that the seniority list was only published on 31.1.2006 and prior to that, no seniority list was published. A perusal of paragraph 41 to 45 and 50 to 52 does not indicate any admission on the part of the petitioner to the effect that he was aware of the seniority list. The petitioner only submitted that the respondent No. 6 started receiving a higher pay scale which he protested and represented the higher authorities. On the other hand, only general allegations has been made by the respondents alleging that the petitioner was aware of the seniority list and that he did not make any protest. Consequently, this Court is of the opinion that the petitioner could not be non suited on the ground of delay in approaching the Court. The Court does not find any deliberate laches on the part of the petitioner in approaching the Court. The submission of the learned counsel for the respondents on this aspect of the matter does not hold water and is rejected. 22. The Court does not find any deliberate laches on the part of the petitioner in approaching the Court. The submission of the learned counsel for the respondents on this aspect of the matter does not hold water and is rejected. 22. The learned counsel for the respondents argued that the petitioner could not file an appeal directly before the Joint Director of Education against the seniority list under Chapter II Regulation 3 of the Regulations framed under the Intermediate Education Act and as per clause (e) of Regulation 3 of Chapter II, further dispute about the seniority is required to be referred to the Committee of Management in the first instance and that the Committee of Management is required to adjudicate upon this dispute and, it is only thereafter that an aggrieved person could file an appeal under Clause 3(1)(f) which has not been done. 23. The learned counsel for the respondents consequently submitted that the appeal filed by the petitioner before the Joint Director of Education was not maintainable and consequently, the writ petition against the order of Joint Director should also be rejected. In support of his submission, the learned counsel for the respondents has placed reliance in Gajendra Singh Sisodia v. Joint Director of Education, Meerut and others, decided on 9.7.2008 passed in writ petition No. 28017 of 1999, in which it was held that in the absence of any decision being taken by the Committee of Management under Regulation 3(1)(e) of Chapter II of the Regulations framed under the Intermediate Education Act, the appeal filed before the Joint Director of Education was not maintainable under Regulation 3(1) (f) of the Regulations framed under the Intermediate Education Act. 24. In paragraph 43 and 46 of the writ petition, the petitioner has alleged that he had approached the authorised controller, and thereafter, filed an appeal. The Authorised Controller has specifically denied this allegation in his counter affidavit and submitted that no such representation or objection was filed by the petitioner. No doubt, the appeal can only be filed before the Joint Director of Education only after a decision is given by the Committee of Management with regard to inter se dispute between the teachers. No appeal can be filed directly before the Joint Director of Education. No doubt, the appeal can only be filed before the Joint Director of Education only after a decision is given by the Committee of Management with regard to inter se dispute between the teachers. No appeal can be filed directly before the Joint Director of Education. However, in the present case and, in view of the controversy involved in the present case, I find it difficult to non suit the petitioner on this ground. From the very beginning, there are allegations against the Management/the Authorised Controller from the time when the first appointment was made in 1987. The action of the Authorised Controller is under a scanner which continues till date. Further, the counter affidavit of the Authorised Controller in these proceedings indicates that he is proposing to initiate action against the petitioner. 25. In view of the aforesaid, no useful purpose could have been served or can be served at this stage in directing the Committee of Management vis-a-vis the Authorised Controller to adjudicate upon the seniority dispute amongst the teachers and, in the given circumstances, the appropriate authority to decide the issue, would be the Joint Director of Education. Consequently, the Court is not inclined to throw out the petition of the petitioner on this ground. 26. The learned counsel for the respondents further submitted that no relief whatsoever could be granted to the petitioner, for the simple reason, that his initial appointment was invalid, illegal and void, and therefore, the petitioner could not challenge the seniority list. The learned counsel submitted that since the appointment of the petitioner was a void appointment order and being a nullity in the eyes of law, the Court should not go into the validity and the legality of the seniority list and should dismiss the writ petition summarily. The learned counsel submitted that the authorised controller had issued an advertisement on 28.1.1989, in which the Selection Committee had recommended the name of the respondent No. 6 and that the name of the petitioner was not recommended, in spite of which, by manipulation, the petitioner started working and his appointment was approved by the District Inspector of Schools without there being an appointment order. On the other hand, the petitioner submits that the appointment order was issued and was duly approved by the District Inspector of Schools and, much later, his services were regularized. On the other hand, the petitioner submits that the appointment order was issued and was duly approved by the District Inspector of Schools and, much later, his services were regularized. An attempt was also made by the respondents to indicate that the affidavits filed on behalf of Authorised Controller before the Supreme Court of India was manipulated at the instance of the petitioner. The learned counsel submitted that a fraud was committed by the petitioner which was a serious matter and required an investigation by the C.B.I. The learned counsel submitted that the appointment of the petitioner could be looked into in these collateral proceeding and if the Court comes to a conclusion that the appointment of the petitioner was wholly illegal, the Court should issue a direction to the CBI to investigate the matter and should also dismiss the petition with cost. In support of his submission, the learned counsel placed reliance upon various judgments which had already referred above. 27. This Court is not impressed with the arguments raised by the learned counsel for the respondent No. 6. In the present case, the appointment of the petitioner is not under challenge and this Court is not inclined to consider the request of the respondent No. 6 to investigate into the appointment of the petitioner in a writ jurisdiction. Such matters are required to be addressed before the appropriate authority and cannot be raised for the first time as a ground of defence in a writ jurisdiction to non suit the petitioner. If a counter claim is to be considered in each and every case in a writ jurisdiction, it will have far reaching consequences which cannot be permitted. 28. This Court is of the opinion that a writ petition under Article 226 of the Constitution of India cannot be treated like a civil suit. A writ is decided on the basis of the affidavits, whereas, the relief claimed in the suit as well as in the counter claim is decided on the basis of evidence which comes before the Court. In the light of the aforesaid, the Court is not inclined to dwell into the allegation of fraud alleged to have been committed by the petitioner. Such matters should be raised by the respondents before the appropriate authority. In view of the aforesaid, the objections raised by the learned counsel for the respondents is rejected. 29. In the light of the aforesaid, the Court is not inclined to dwell into the allegation of fraud alleged to have been committed by the petitioner. Such matters should be raised by the respondents before the appropriate authority. In view of the aforesaid, the objections raised by the learned counsel for the respondents is rejected. 29. The main relief which the petitioner has prayed is, for the quashing of the order of the District Inspector of Schools dated 20.4.1999, whereby the respondent No. 6 has been given seniority on the post of lecturer w.e.f. 7.1.1987. The question of deciding the seniority, in the first instance is required to be adjudicated by the Committee of Management, and thereafter, by the Joint Director of Education in an appeal. The District Inspector of Schools has no authority to decide this question nor can grant seniority. 30. In view of the provisions of Chapter II Regulation 3 of the Regulations framed under the U.P. Intermediate Education Act, it is clear that the question of seniority can be considered in the first instance by the Committee of Management, and thereafter, by the Joint Director of Education in an appeal. On this short ground, the order of the District Inspector of Schools cannot be sustained and is quashed. Consequently, the order of the Joint Director of Education is also quashed. The writ petition is allowed. 31. Since I have already held that in the present, facts and circumstances of this case, the Committee of Management/the Authorised Controller should not decide the dispute, the matter is remitted to the Joint Director of Education to decide the inter se dispute between the petitioner and the respondent No. 6 and the petitioner in the connected writ petition and such other teachers of the institution, who are aggrieved by the seniority list within three months from the date of the production of a certified copy of this order. While considering the seniority, it would be open to the respondent No. 6 as well as to the Authorised Controller to place evidence with regard to the validity and legality of the appointment of the petitioner. If such a stand is taken by the respondents, the Joint Director of Education would be obliged to give a finding on this aspect. 32. If such a stand is taken by the respondents, the Joint Director of Education would be obliged to give a finding on this aspect. 32. In view of the aforesaid, writ petition No. 9223 of 2006 filed by Sharad Chandra Upadhyay is disposed of and it would be open to the said petitioner to file an appeal before the Joint Director of Education which would be heard and decided together. 33. In view of the aforesaid, the relief claimed by the respondent No. 6 in writ petition No. 47857 of 2000 cannot be granted and is dismissed. ————