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2008 DIGILAW 2718 (ALL)

BIPIN BIHARI SINGH v. STATE OF U. P.

2008-12-18

S.U.KHAN

body2008
JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the parties. 2. Petitioner claims to have been appointed as lecturer in English on a short-term vacancy in Sardar Ballabh Bhai Patel Inter College, Haldharpur, District Mau. The college is privately managed but aided by the Government and is governed by the following Acts : (1) U.P. Intermediate Education Act, 1921 (2) U.P. Payment of Salaries Act, 1971 (Act No. 24 of 1971) (3) U.P. Secondary Education Services Selection Board Act, 1982. 3. According to the petitioner, Sri Paras Nath Singh a lecturer of the college went on leave giving rise to the short-term vacancy. It has further been stated in Para-5 of the writ petition that short-term vacancy was advertised in English newspapers ‘Rashtriya Chinha’ published from Gorakhpur and ‘Anchalik’ published from Ghazipur on 15.12.1994. According to the Para-7 of the writ petition, petitioner was selected on 1.1.1995 by the Committee of Management. At the relevant time, appointments on short-term vacancies were governed by U.P. Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981 (hereinafter referred to ‘second order’). Annexure-1 to the writ petition, the alleged appointment letter is signed only by the Manager and it does not state that Committee of Management had passed any resolution for appointment of the petitioner. It has further been alleged that on 16.1.1995, Manager sent letter to the D.I.O.S. seeking financial approval. 4. Earlier also petitioner had filed W.P. No.12918 of 1996 for payment of his salary, which was disposed of on 1.5.1997 with the direction to the D.I.O.S. to decide the representation. D.I.O.S. passed an order on 24.8.1998 granting financial approval. Said order is Annexure-2 to the writ petition. 5. It may be mentioned that Sri Paras Nath retired on 30.6.1995. 6. The order dated 24.8.1998 does not give any cogent reason. Even the documents seeking permission and financial approval from D.I.O.S. have not been discussed or mentioned. It is mentioned that in pursuance of the said order, petitioner was paid salary for August-September, 1998 but thereafter no salary was paid. Thereafter, it is mentioned in Para-18 that on 9.3.2001, petitioner filed representation before D.I.O.S., which was followed by reminder dated 3.1.2002. Thereafter, another writ petition was filed being Writ Petition No. 52035 of 2002, which was again disposed of on 30.3.2005 directing the Joint Director of Education (J.D.E.) to decide the matter. Thereafter, it is mentioned in Para-18 that on 9.3.2001, petitioner filed representation before D.I.O.S., which was followed by reminder dated 3.1.2002. Thereafter, another writ petition was filed being Writ Petition No. 52035 of 2002, which was again disposed of on 30.3.2005 directing the Joint Director of Education (J.D.E.) to decide the matter. J.D.E. through order dated 8.6.2006 decided the matter against the petitioner. The said order has been challenged through this writ petition, which is Annexure-5. 7. It is very strange that after receiving August-September, 1998 salary, petitioner waited for about three years in making the representation and filing the writ petition. 8. Earlier order dated 24.8.1998 was passed by Kamla Ram, the then D.I.O.S., Mau. 9. In the writ petition of 2002, counter affidavit was filed stating therein that Sri Kamla Ram, the then D.I.O.S. has passed several illegal orders approving the illegal appointments, hence by a general order dated 1.1.1998 Joint Director of Education had stopped the salary of such persons whose payments had been approved by the then D.I.O.S., Kamla Ram. 10. Through order dated 30.3.2005 passed by this Court in the writ petition of 2002, it was directed that each case including the case of the petitioner should have been decided on its own merit. Accordingly, through impugned order, Joint Director of Education decided the case of the petitioner. 11. In the impugned order, it is very rightly held that Sri Paras Nath filed application for obtaining medical leave on 1.1.1995, however vacancy had been advertised in the newspapers on 15.12.1994. It has also rightly been held that advertisement was wrongly published in the local newspapers in Ghazipur and Gorakhpur while appointment was to be made in District Mau. It is also found in the impugned order that quality point marks were not awarded in accordance with the “first order” and in case quality points had appropriately been calculated, Sri Jitendra Bahadur Singh, another applicant, would have got 21 marks and petitioner 18 marks. In the newspapers, 15.1.1995 was fixed for interview, however appointment letter was issued on 1.1.1995. 12. From the perusal of the impugned order, it is categorically clear that Sri Kamla Ram fraudulently passed the order and in pursuance of the same, salary for August-September, 1998 was illegally paid to the petitioner. 13. In the newspapers, 15.1.1995 was fixed for interview, however appointment letter was issued on 1.1.1995. 12. From the perusal of the impugned order, it is categorically clear that Sri Kamla Ram fraudulently passed the order and in pursuance of the same, salary for August-September, 1998 was illegally paid to the petitioner. 13. Moreover, by virtue of authorities of this Court reported in K.N. Dwivedi v. D.I.O.S., 1994 UPLBEC 461 and Radha Raizada v. Committee of Management, 1994 (2) ESC 345 (All) (FB), it was mandatory to publish the advertisement for filling up the post against short-term vacancy in accordance with first removal of difficulties order. Under the first order, advertisement is to be issued in two newspapers having adequate circulation in U.P. The newspapers in which advertisement for the post in dispute was issued have absolutely no circulation or at least no adequate circulation in U.P. There is absolutely no explanation as to why vacancy was not filled up by promotion from L.T. Grade teacher. 14. Accordingly, there is absolutely no merit in this writ petition, hence it is dismissed. Out of the two month’s salary paid to the petitioner, one month’s salary shall be recovered from the petitioner like arrears of land revenue and one month’s salary shall be deducted from the next month’s salary or retiral dues of Sri Kamla Rai, the then D.I.O.S. 15. Office is directed to supply copy of the order free of cost to Standing Counsel within one week ————