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2009 DIGILAW 630 (UTT)

STATE OF UTTARAKHAND v. SATYA BAHAR

2009-12-15

JAGDISH SINGH KHEHAR, TARUN AGARWALA

body2009
JUDGMENT [Per : Hon’ble J.S. Khehar, C.J. (Oral)] Through the instant special appeal, the State Government has assailed the order passed by this court on 01.03.2006, disposing of Writ Petition No. 454 of 2005 (S/S). In its aforesaid decision, this court had arrived at the conclusion, that the appointment of Satya Bahar (respondent No. 1 herein), was in conformity with the rules and regulations prescribed, and that, his claim for wages was liable to be accepted. It is, therefore that the learned Single Judge, vide his order dated 01.03.2006 directed the State Government to release wages to respondent No. 1 Satya Bahar. 2. It is necessary before embarking upon the submissions advanced at the hands of the learned counsel for the appellants to delineate the factual background of the controversy. In this behalf, it would be pertinent to mention that the Raja Mahendra Pratap Prem Vidyalaya is an aided institution under the Uttar Pradesh Intermediate Education Act, 1921. As a consequence of promotion of four Assistant Teachers to the post of ad hoc Lecturers, four short term vacancies in the cadre of Assistant Teachers arose at the Raja Mahendra Pratap Prem Vidyalaya. To fill up these four short term vacancies on ad hoc basis, the Management of the college issued an advertisement dated 09.10.1996. Respondent No. 1 was one of the applicants, who responded to the aforesaid advertisement. He also participated in the process of selection, before the selection committee, constituted by the management committee, of the college. In the process of selection, respondent No. 1 was one of the selected candidates for appointment, against one of the four short term vacancies, which were sought to be filled up on ad hoc basis. The proceedings of the selection committee, were placed before the management committee, of the college. Consequent upon the approval of the proceedings of the selection committee, the management committee, appointed respondent No. 1, as a short term ad hoc Assistant Teacher in the L.T. grade of Rs. 1400-2300. Accordingly, the respondent was issued an appointment letter dated 23.10.1996. In furtherance of the receipt of the aforesaid appointment letter, respondent No. 1 assumed charge of the post of short term ad hoc Assistant Teacher in the L.T. grade, at the aforesaid college on 01.11.1996. 3. 1400-2300. Accordingly, the respondent was issued an appointment letter dated 23.10.1996. In furtherance of the receipt of the aforesaid appointment letter, respondent No. 1 assumed charge of the post of short term ad hoc Assistant Teacher in the L.T. grade, at the aforesaid college on 01.11.1996. 3. The pleadings before the writ court as well as in the instant special appeal reveal that after assuming charge on 01.11.1996, the respondent has rendered uninterrupted service, as a short term ad hoc Assistant Teacher till date. Despite the fact, that he was rendering service with the respondent college, he was not paid any salary/wages. Accordingly, he approached the High Court at Allahabad by filing Writ Petition No. 2049 of 1997. The aforesaid writ petition was disposed of by an order dated 17.01.1997, requiring the appellants to take a final decision on the representation submitted by respondent No. 1 (Satya Bahar) within two months. Since the order dated 17.01.1997 was not complied with by the appellants, respondent No. 1 (Satya Bahar) filed yet another Writ Petition bearing No. 3126 of 2001 (S/S) before this court. The same was disposed of on 31.12.2003, whereupon the representation submitted by respondent Satya Bahar was disposed of by the appellants, vide an order dated 17.05.2004. As per the order dated 17.05.2004 respondent Satya Bahar was not entitled to any salary/wages on account of the fact, that his appointment as an Assistant Teacher in the L.T. grade, was not in conformity with law. The disclosure of the infirmity in the process of appointment of respondent Satya Bahar, emerges from the averments made in paragraph-9 of the counter affidavit filed on behalf of the appellants before this court during the proceedings in Writ Petition No. 454 of 2005 (S/S). In paragraph-9, it was asserted that prior permission of the District Inspector of Schools, Haridwar, before filling up of teaching posts on short term ad-hoc basis, was a pre-requisite; and since no such prior permission was sought by the management of Raja Mahendra Pratap Prem Vidyalaya, from the District Inspector of Schools Haridwar, the selection and appointment of the respondent Satya Bahar, was not in conformity with law. 4. 4. Based on the factual position noticed herein above, as also the judgments rendered in Radha Raizada and others versus Committee of Management, Vidyawati Darbari Girls Inter College and others [(1994) 3 UPLBEC, 1551], Meena Singh versus State of U.P. and others [(1999) 1 UPLBEC, 196] a learned Single Judge of this court allowed Writ Petition No. 454 of 2005 (S/S) on 01.03.2006, by holding, that the respondent Satya Bahar was entitled to salary/wages as there was nothing irregular about his appointment. While disposing of the writ petition, this Court quashed the order dated 17.05.2004 (passed by the appellants in furtherance of directions issued in Writ Petition No. 3126 (S/S) of 2001. 5. In so far as the present special appeal is concerned, yet again, it is the vehement contention of the learned counsel for the appellants (i.e. the official respondents before the Writ Court), that prior permission for short term ad hoc appointment having not been obtained, the entire process of selection and appointment, of the respondent Satya Bahar was vitiated, and as such, there was no question of the State Government bearing the burden of salary/wages to him. It is this pointed issue, which shall require adjudication, during the course of the disposal of present special appeal. 6. Learned counsel for the rival parties are agreed, that in so far as the present controversy is concerned, the procedure for selection and appointment, to short term ad hoc vacancies, is regulated by the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, (hereinafter referred to as the Removal of Difficulties Order, 1981). Learned counsel for the rival parties are also agreed that paragraph-2 of Removal of Difficulties Order, 1981 delineates the procedure for filling up short term ad hoc vacancies, of the nature against which the respondent Satya Bahar came to be appointed, vide order dated 23.10.1996. Paragraph-2 of the Removal of Difficulties Order, 1981 is being extracted hereunder:- “2. Procedure for filling 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. – (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 immediately 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 non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, 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. Ma-4993/XV-7-1(79)-1981, dated July 31, 1982, 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 candidate 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 date of receipt of papers by him from the manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.” 7. Clause (3) of the paragraph-2 of the Removal of Difficulties Order, 1981, is of primary concern, for the adjudication of the present controversy. There can be no dispute whatsoever, that prior to filling up of short term ad hoc vacancies, it is incumbent on management committee of an institute, to intimate the vacancy sought to be filled up, to District Inspector of Schools. It is the pointed contention of the learned counsel for the appellants, that the aforesaid prior intimation was not communicated by the college to the District Inspector of Schools, in the present case. The second objection to the process of selection, in terms of the submissions advanced by the learned counsel for the appellants was, that the names of all the candidates selected, as also, the other candidates who participated in the process of selection, as also, the quality points assigned to them had to be forwarded by the manager of the institution in question, to the District Inspector of Schools “for his prior approval”. And since neither prior approval was sought before the issuance of the order of appointment dated 23.10.1996, nor the subsequent procedure (referred to above), envisaged under the Removal of Difficulties Order, 1981 was complied with, the entire selection process leading to the appointment of the respondent Satya Bahar was a nullity in the eyes of law. 8. Besides the two submissions noticed herein above, learned counsel for the appellants, has advanced no other submission. 9. In so far as the factual aspect is concerned, there can be no doubt whatsoever, that the learned counsel for the appellants is fully justified in his narration to this Court. The pleadings of this case do not reveal that prior intimation before filling up four short term ad hoc vacancies were intimated to the District Inspector of Schools, Haridwar. It is so factually correct, that the respondent Satya Bahar was issued an order of appointment dated 23.10.1996 by the Management of the college concerned, before forwarding the names and particulars of the candidates concerned to the District Inspector of Schools “for his prior approval”. It is so factually correct, that the respondent Satya Bahar was issued an order of appointment dated 23.10.1996 by the Management of the college concerned, before forwarding the names and particulars of the candidates concerned to the District Inspector of Schools “for his prior approval”. This factual aspect is obvious, from the communication dated 23.10.1996 addressed by the Management of the college of the District Inspector of Schools, Haridwar, as the concerned record of the selection process, was forwarded by the institute only on 23.10.1996 (i.e. on the same date when the order of appointment was issued to respondent No. 1 Satya Bahar). 10. Despite the acknowledged factual position noticed in the foregoing paragraphs, the issue that must be settled in the background of the Removal of Difficulties Order, 1981 is, whether the procedure followed by the Management of the college was such, as could have been set aside by the District Inspector of Schools, on the basis of the procedure defined in paragraph-2 thereof. We have given our thoughtful consideration to the procedure envisaged in paragraph-2 and specially clause (3) thereof, which deals with the procedure and manner of filling up of short term ad hoc vacancies. Although the procedure envisaged therein merely requires the Institute to notify the vacancies on the notice board of the Institute, yet the facts in the present case reveal that the college issued an advertisement in a news paper on 09.10.1996 requiring all eligible candidates to apply for appointment against the four short term ad hoc vacancies. Thus viewed, it is apparent that the institution concerned was desirous to filling up the four short term ad hoc vacancies by a fair process of selection. Not only were the vacancies notified to the public at large, but the instant public notice must be deemed to have come to the notice of the District Inspector of Schools, Haridwar, as well. It is also clear from the factual position that the management of the college, constituted a selection committee, wherein the merits of the rival candidates were adjudged. The procedure adopted by the selection committee was placed before the management committee of the concerned college. It is only after the proceedings of the selection committee, were approved and accepted by the management committee of the college, that an order of appointment was issued to respondent Satya Bahar on 23.10.1996. The procedure adopted by the selection committee was placed before the management committee of the concerned college. It is only after the proceedings of the selection committee, were approved and accepted by the management committee of the college, that an order of appointment was issued to respondent Satya Bahar on 23.10.1996. It is, therefore, clear that the procedure adopted by the management of the college was fair and reasonable. Even in the counter affidavit filed by the appellants in response to the averments made in Writ Petition No. 454 of 2005 (S/S) it is not the case of the appellants, that a fair process of selection was not conducted by the authorities, while finalizing the name of the respondent Satya Bahar, as one of the selected candidates for appointment against the four short term ad hoc vacancies advertised on 09.10.1996. Although there can be no doubt whatsoever, that the “prior approval of the District Inspector of Schools” was not sought by Management of concerned college, yet we are of the view that the aforesaid infirmity by itself, will not render the selection process void or even voidable. Inasmuch as, sub-clause (iii) of clause (3) of paragraph 2 of the Removal of Difficulties Order, 1981 (extracted hereinabove) reveals, that the District Inspector of Schools is to take a decision within 7 days of the date of receipt of the particulars of the selection process. In his decision, the District Inspector of Schools is to determine, whether or not the selection process was justified. Sub-clause (iv) of clause (3) of paragraph 2 of the Removal of Difficulties Order, 1981, postulates that in case the District Inspector of Schools, does not forward any communication to the Institution/college, within 7 days of the receipt of the particulars of the selection process by a deeming fiction of law, the process of selection is to be treated as having been approved, by the District Inspector of Schools. The factual position disclosed reveals, that the Manager of the college, addressed a communication dated 23.10.1996, to the District Inspector of Schools, Haridwar and sought his approval. Alongwith the aforesaid communication dated 23.10.1996, the Manager of the college enclosed the entire selection process, for the consideration of the District Inspector of Schools, Haridwar. The factual position disclosed reveals, that the Manager of the college, addressed a communication dated 23.10.1996, to the District Inspector of Schools, Haridwar and sought his approval. Alongwith the aforesaid communication dated 23.10.1996, the Manager of the college enclosed the entire selection process, for the consideration of the District Inspector of Schools, Haridwar. Not only did the District Inspector of Schools not intimated his disapproval to the aforesaid selection process to the college concerned, no decision whatsoever was taken thereupon for a period of about 7½ years, when as a consequence of the directions issued by this Court in Writ Petition No. 3126 of 2001 (S/S), an order dated 17.05.2004 was passed by the appellants stating, that the appointment of the respondent Satya Bahar was not in conformity with law. The aforesaid order dated 17.05.2004 was well-well beyond the period stipulated in sub-clause (iv) of clause (3) of paragraph 2 of the Removal Difficulties Order, 1981. By a deeming fiction of law, the process of selection was liable to be treated as approved at the hands of District Inspector of Schools after a period of 7 days in the absence of any information to the contrary. Since the college had supplied the required information, about the selection process, to the District Inspector of Schools, Haridwar on 23.10.1996, and no disapproval thereof was received for a period of 7 days i.e. till 30.10.1996, on 30.10.1996 the process of selection was liable to be accepted as having been approved at the hands of the District Inspector of Schools. Undisputedly, the respondent Satya Bahar assumed his duties thereafter by joining on 01.11.1996. Neither the process of selection, nor the joining of respondent Satya Bahar on 01.11.1996 can be deemed to be in violation of the mandate of the Removal of Difficulties Order, 1981. Even otherwise there was no occasion for the authorities, in the facts of the present case, to have raised any objection, since it is acknowledged that the process of selection adopted by the college was fair and proper. 11. This case has left a bad taste in our mouth, inasmuch as, the respondent Satya Bahar having continuously rendered service with effect from 01.11.1996, he was not paid his wages. 11. This case has left a bad taste in our mouth, inasmuch as, the respondent Satya Bahar having continuously rendered service with effect from 01.11.1996, he was not paid his wages. He filed two writ petitions, one in 1997 and the second in 2001, although his section at the hands of the college had been conducted in a fair and reasonable manner, and although, no objection to the same had been raised by the District Inspector of Schools, Haridwar, after the same was brought to his notice as far back as on 23.10.1996. On both occasions, when he approached the High Court (first at Allahabad and then at Nainital) he sought wages on account of the services rendered. Inspite of the fact, that his claim was allowed, wages have still not been paid to him. During the course of the hearing of the present appeal, we are of the view, that the submissions advanced at the hands of the appellants, were merely in the nature of obstacles stumbling blocks, raised at the hands of the appellants, without any justification. One could have understood, if the appellants had found that the process of selection adopted by the management of the college was unfair. Merely on technical objections the appellants have denied salary/wages, to an employee engaged merely on a short term ad hoc basis, can not be appreciated. We have found no infirmity in the selection process, or the fairness thereof, in the adjudication of the present appeal. We are, therefore, satisfied that besides requiring the appellants to disburse wages to the respondent Satya Bahar forthwith, exemplary costs deserved to be imposed on the appellants. We are satisfied that the appellants should pay costs quantified at Rs. 10,000/- (Rupees ten thousand). The aforesaid costs shall be deposited by the appellants with the High Court Bar Association of Uttarakhand. The receipt of costs deposited shall be placed on the record of this case within one month from today, failing which, the instant Special Appeal shall be re-listed for motion hearing, for the recovery of costs. The entire wages/salary payable to the respondent Satya Bahar shall be positively disbursed to him within one month of the receipt of a certified copy of this order. 12. The instant Special Appeal stands disposed of in the aforesaid terms.